EXHIBIT 4.12


 


EXECUTION
VERSION


 


 


27 August 2009


 


J.P. MORGAN EUROPE
LIMITED

as RCF Agent


The RCF Finance
Parties


 


The Hedge
Counterparties


 


UniCredit Bank
Austria AG


as OeKB Agent


 


The OeKB Lenders


 


The Bank of New York
Mellon


as Bond Trustee


 


The Original Debtors


 


J.P. Morgan Europe
Limited

as Security Agent


 


and others


 






 


INTERCREDITOR AGREEMENT


 






 


BRINGING THIS
DOCUMENT OR ANY CERTIFIED COPY OF THIS DOCUMENT INTO THE REPUBLIC OF AUSTRIA AS
WELL AS ANY WRITTEN CONFIRMATION (INCLUDING E-MAIL AND FAX) OR WRITTEN
REFERENCE (INCLUDING E-MAIL AND FAX) TO THIS DOCUMENT MAY CAUSE THE
IMPOSITION OF AUSTRIAN STAMP DUTY TAX. 
PLEASE READ CLAUSE 22.3 (STAMP TAXES), 25 (NOTICES) AND 28 (PLACE OF
PERFORMANCE) OF THIS AGREEMENT IN CONNECTION WITH THE FOREGOING.


 


LATHAM &
WATKINS LLP


 


99 Bishopsgate


 


London


 


EC2M 3XF


 


United Kingdom


 

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions and
  Interpretation

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Ranking and Priority

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  RCF Finance Parties and
  RCF Finance Parties’ Liabilities

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  OeKB Lenders and OeKB
  Liabilities

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Bondholders and Bonds
  Liabilities

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Hedge Counterparties and
  Hedging Liabilities

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Pari Passu Lenders and
  Pari Passu Debt

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Intra-Group Lenders and
  Intra-Group Liabilities

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Effect of Insolvency
  Event

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Turnover of Receipts

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Redistribution

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Enforcement of
  Transaction Security

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Proceeds of Disposals

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Application of Proceeds

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  Equalisation

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  The Security Agent

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  Change of Security Agent
  and Delegation

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
  Limitation on Principal
  Property as Security

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
  Changes to the Parties

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
  Pari passu debt

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
  Refinancing of Senior
  Liabilities

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
  Costs and expenses

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
  Indemnities

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
  Information

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
  Notices

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
  Preservation

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
  Consents, Amendments and
  Override

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
  Place of performance

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  29.

  	
  Counterparts

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
  Governing Law

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  31.

  	
  Enforcement

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 1

  	
  THE PARTIES

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 2

  	
  FORM OF DEBTOR ACCESSION
  DEED

  	
   

  	
   

  
					



 

















 


	
  SCHEDULE 3

  	
  FORM OF CREDITOR/AGENT
  ACCESSION UNDERTAKING

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 4

  	
  SECURITY ENFORCEMENT
  PRINCIPLES

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 5

  	
  STAMP DUTY GUIDELINES

  	
   

  	
   

  



 

















 


THIS AGREEMENT is dated 27 August 2009
and made between:


 


(1)                           J.P. MORGAN EUROPE
LIMITED as agent for the RCF Finance Parties (the “RCF Agent”);


 


(2)                           UNICREDIT BANK AUSTRIA
AG as agent for the OeKB Lenders (the “OeKB Agent”);


 


(3)                           UNICREDIT BANK AUSTRIA
AG as agent under the Bank Austria Facility
(the “Bank Austria Agent”);


 


(4)                           THE BANK OF NEW YORK MELLON as trustee
for the Bondholders (the “Bond Trustee”);


 


(5)                           THE FINANCIAL INSTITUTIONS listed in Part 1
of Schedule 1 (The Parties) hereto, being the
RCF Finance Parties;


 


(6)                           THE FINANCIAL
INSTITUTIONS listed in Part 2 of Schedule
1 (The Parties) hereto,
being the OeKB Lenders;


 


(7)                           THE PERSONS listed in Part 3
of Schedule 1 (The Parties) hereto, being the
Hedge Counterparties;


 


(8)                           THE COMPANIES listed in Part 4
of Schedule 1 (The Parties) hereto, being the
Intra-Group Lenders;


 


(9)                           THE SUBSIDIARIES of the
Company listed in Part 5 of Schedule 1 (The Parties)
hereto, being the Debtors (together with the Company, the “Original
Debtors”);


 


(10)                    J.P. MORGAN EUROPE
LIMITED as security trustee and security agent for the Secured
Parties (the “Security Agent”);


 


(11)                    SAPPI LIMITED, a company incorporated under the
laws of the Republic of South Africa  (the
“Company”);


 


(12)                    CAPITA TRUST COMPANY
LIMITED as security agent for the Bond
Only Security (the “Bond Security Agent”).


 


IT IS AGREED as follows:


 


1.                                DEFINITIONS AND INTERPRETATION


 


1.1                         Definitions


 


In this Agreement:


 


“1992
ISDA Master Agreement” means the Master Agreement (Multicurrency -
Cross Border) as published by the International Swaps and Derivatives
Association, Inc.


 


“2002
ISDA Master Agreement” means the 2002 Master Agreement as published
by the International Swaps and Derivatives Association, Inc.


 


“2012/2032 Final Notes Redemption”
means the earlier of (i) the date that the 2012/2032 Notes are no longer
outstanding and (ii) the date when the restrictions set 


 


1

















 


forth in Sections 3.11 (Limitation on Liens) and 3.12 (Limitation of
Sale and Leaseback Transactions) of the 2012/2032 Indentures are no
longer applicable.


 


“2012/2032 Indentures”
means the 2012 indenture and the 2032 indenture each dated as of 10 June 2002
and constituting (respectively) the 6.75% Guaranteed Notes Due 2012 and the
7.50% Guaranteed Notes Due 2032.


 


“2012/2032 Notes”
means any notes issued by Sappi Papier Holding GmbH under the 2012/2032
Indentures.


 


“Acceleration
Event” means an RCF Acceleration Event, a Bonds Acceleration Event,
an OeKB Acceleration Event or a Pari Passu Debt Acceleration Event.


 


“Acceleration
Notice” means a notice of an Acceleration Event.


 


“Agent
Liabilities” means all present and future liabilities and
obligations, actual and contingent, owed by the Debtors to the Agents under or
in connection with the Finance Documents.


 


“Agents” means the RCF Agent, the OeKB
Agent, the Bond Trustee and the Pari Passu Agent.


 


“Austrian Buildings on
Third Party Land Mortgage” means the Austrian law pledge over
buildings on third party land (Superädifikate)
owned by Sappi MagnoStar GmbH.


 


“Austrian Land Mortgage”
means the Austrian law real estate mortgage over land owned by Sappi Gratkorn
GmbH.


 


“Austrian Mortgages”
means the Austrian Land Mortgage and the Austrian Buildings on Third Party Land
Mortgage.


 


“Austrian Mortgages
Perfection Trigger” means either (a) a Major Event of Default
has occurred which is continuing, or (b) the credit rating for the Company’s
secured debt obligations is B+ or lower by Standard & Poor’s Rating
Services, or B1 or lower by Moody’s Investors Service.


 


“Bank Austria Acceleration
Event” means the Bank Austria Agent exercising any of its rights
under clause 24 of the Bank Austria Facility.


 


“Bank Austria Facility” means the USD
54,083,621.20 term loan facility made between the Company, the Obligors (as
defined therein), UniCredit Bank Austria AG as Arranger, Agent and Original
Lender (each as defined therein) and others dated 29 August 2005.


 


“Bond Only Security”
means the Austrian law receivables pledge agreement over the Bond Proceeds Loan
or Loans made from the Issuer to Sappi Papier Holding GmbH securing only the
Bonds Liabilities, dated on or about the date hereof and entered into between
the Issuer and the Bond Security Agent as amended from time to time.


 


“Bondholders” means
the holders of the Bonds at any time pursuant to the terms of the Bonds
Indenture.


 


2

















 


“Bonds” means
the USD 300,000,000.00 12 % Senior Secured Notes due 2014 and the EUR
350,000,000.00 11.75% Senior Secured Notes due 2014 issued by the Issuer
pursuant to the terms of the Bonds Indenture and any additional notes issued from time to time under the Bonds
Indenture.


 


“Bonds Acceleration Event”
means the Bond Trustee or the Bondholders exercising any of their rights under
section 6.02  (Acceleration)
of the Bonds Indenture.


 


“Bonds Finance Documents” means:


 


(a)                                     the Bonds Indenture;


 


(b)                                     the Bonds;


 


(c)                                      the Bonds Proceeds
Loan;


 


(d)                                     the Bond Only
Security;


 


(e)                                     this Agreement; and


 


(f)                                         the Security
Documents.


 


“Bonds Indenture”
means the senior secured notes indenture dated 29 July 2009 between, among
others the Issuer and the Bond Trustee, as amended from time to time.


 


“Bonds Liabilities”
means the Liabilities owed by the Issuer and the Debtors to the Bond Trustee
and the Bondholders under the Bonds Finance Documents.


 


“Bonds Proceeds Loan”
means the Notes Proceeds Loan as defined in the Bonds Indenture.


 


“Bonds Required Holders” means the holders
of the required principal amount of the then outstanding Bonds or, if the required amount is not specified, the holders
holding at least the majority of the principal amount of the then outstanding Bonds, in accordance with the Bonds Indenture.


 


“Borrowing
Liabilities” means, in relation to a member of the Group, the liabilities
(not being Guarantee Liabilities) it may have as a principal debtor to a
Creditor or Debtor in respect of Financial Indebtedness arising under the Debt
Documents (whether incurred solely or jointly and including, without
limitation, liabilities as a Borrower under and as defined in the relevant
Finance Documents).


 


“Business
Day” means a day (other than a Saturday
or Sunday) on which banks are open for general business in London and in Vienna
and:


 


(a)                                 (in relation
to any date for payment or purchase of a currency other than Euro) the
principal financial centre of the country of that currency; or


 


(b)                                 (in relation
to any date for payment or purchase of Euro) which is a TARGET Day.


 


“Charged Property”
means all of the assets which from time to time are, or are expressed to be,
the subject of the Transaction Security.


 


3

















 


“Common
Currency” means the Euro (EUR or €).


 


“Common
Currency Amount” means, in relation to an amount, that amount
converted (to the extent not already denominated in the Common Currency) into
the Common Currency at the Security Agent’s Spot Rate of Exchange on the Business
Day prior to the relevant calculation.


 


“Consent”
means any consent, approval, release or waiver or agreement to any amendment.


 


“Creditor/Agent
Accession Undertaking” means:


 


(a)                                     an undertaking
substantially in the form set out in Schedule 3 (Form of Creditor/Agent Accession Undertaking); or


 


(b)                                     a Transfer
Certificate or an Austrian Transfer Certificate (each as defined in the RCF
Facility Agreement or the OeKB Facilities, as the case may be),


 


as the context may require, or


 


(c)                                      in the case of an
acceding Debtor which is also expressed to accede as an Intra-Group Lender in
the relevant Debtor Accession Deed, that Debtor Accession Deed.


 


“Creditors” means the Security Agent, the Agents, the RCF Finance
Parties, the OeKB Lenders, the Bondholders, the Hedge Counterparties, the Pari
Passu Lenders and the Intra-Group Lenders.


 


“Debt Document”
means each of this Agreement, the Hedging Agreements, the RCF Finance
Documents, the Bonds Finance Documents, the OeKB Finance Documents, the
Security Documents, any Pari Passu Document, any agreement evidencing the terms
of the Intra-Group Liabilities and any other document designated as such by the
Security Agent and the Company.


 


“Debtor” means
each Original Debtor and any person which becomes a Party as a Debtor in accordance
with the terms of Clause 19 (Changes to
the Parties).


 


“Debtor Accession Deed”
means:


 


(a)                                     a deed substantially
in the form set out in Schedule 2 (Form of
Debtor Accession Deed); or


 


(b)                                     (only in the case of
a member of the Group which is acceding as a borrower or guarantor under the
RCF Facility Agreement or the OeKB Facilities) an Accession Deed (as defined in
the RCF Facility Agreement or the OeKB Facilities).


 


“Debtor
Liabilities” means, in relation to a member of the Group, any
liabilities owed to any Debtor (whether actual or contingent and whether
incurred solely or jointly) by that member of the Group.


 


4

















 


“Default” means
an Event of Default or any event or circumstance which would (with the expiry
of a grace period, the giving of notice, the making of any determination under
the Debt Documents or any combination of any of the foregoing) be an Event of
Default.


 


“Delegate” means
any delegate, agent, attorney or co-trustee appointed by the Security Agent.


 


“Disposal
Proceeds” has the meaning given to that term in Clause 13 (Proceeds of Disposals).


 


“Disruption Event”
means either or both of:


 


(a)                                 a material
disruption to those payment or communications systems or to those financial
markets which are, in each case, required to operate in order for payments to
be made in connection with the Liabilities (or otherwise in order for the
transactions contemplated by this Agreement to be carried out) which disruption
is not caused by, and is beyond the control of, any of the Parties; or


 


(b)                                 the occurrence
of any other event which results in a disruption (of a technical or
systems-related nature) to the treasury or payments operations of a Party
preventing that, or any other Party:


 


(A)                                 from
performing its payment obligations under this Agreement; or


 


(B)                                from
communicating with other Parties in accordance with the terms of this
Agreement,


 


and which (in either such case) is not
caused by, and is beyond the control of, the Party whose operations are disrupted.


 


“Distress
Event” means any of:


 


(a)                                     an Acceleration
Event; or


 


(b)                                     the enforcement of
any Transaction Security.


 


“Distressed
Disposal” means a disposal of an asset subject to the Transaction
Security of a member of the Group which is:


 


(a)                                     being effected at the
request of the Enforcing Senior Creditors in circumstances where the
Transaction Security has become enforceable;


 


(b)                                     being effected by
enforcement of the Transaction Security; or


 


(c)                                      being effected, after
the occurrence of a Distress Event, by a Debtor to a person or persons which is
not a member of the Group.


 


“Enforcement Action”
means:


 


(a)                                     in relation to any
Liabilities:


 


(i)                        the acceleration of any Liabilities or
the making of any declaration that any Liabilities are prematurely due and payable
(other than as a result of it becoming unlawful for an RCF Finance Party, an
OeKB Lender, a Bondholder, a Hedge Counterparty or a Pari Passu Lender to
perform its 


 


5

















 


obligations
under, or of any voluntary or mandatory prepayment arising under, the Debt
Documents);


 


(ii)                     the making of any declaration that any
Liabilities are payable on demand;


 


(iii)                  the making of a demand for payment in
relation to a Liability that is payable on demand;


 


(iv)                   the making of a demand for payment
against any member of the Group in relation to any Guarantee Liabilities of
that member of the Group;


 


(v)                      the exercise of any right of set-off,
account combination or payment netting against any member of the Group in
respect of any Liabilities other than the exercise of any such right which is
expressly permitted by law or under the RCF Facility Agreement, the OeKB
Facilities, the Bonds Indenture, any Hedging Agreement or any Pari Passu
Document and


 


(vi)                   the suing for or commencing of any
legal proceedings against any member of the Group to recover any Liabilities;


 


(b)                                     the exercise or
enforcement of any right under any Transaction Security (including the
crystallisation of any floating charge forming part of the Transaction Security);


 


(c)                                      the entering into of
any composition, compromise, assignment or arrangement with any member of the
Group which owes any Liabilities, or has given any Security, guarantee or
indemnity or other assurance against loss in respect of the Liabilities (other
than any action permitted under Clause 19 (Changes
to the Parties)); or


 


(d)                                     the petitioning,
applying or voting for, or the taking of any steps (including the appointment
of any liquidator, receiver, administrator or similar officer) in relation to,
the winding up, dissolution, administration or reorganisation of any member of
the Group which owes any Liabilities, or has given any Security, guarantee,
indemnity or other assurance against loss in respect of any of the Liabilities,
or any of such member of the Group’s assets or any suspension of payments or
moratorium of any indebtedness of any such member of the Group, or any
analogous procedure or step in any jurisdiction,


 


except that
the taking of any action falling within paragraphs (a)(vi) or (d) above
which is necessary (but only to the extent necessary) to preserve the validity,
existence or priority of claims in respect of Liabilities, including the
registration of such claims before any court or governmental authority and the
bringing, supporting or joining of proceedings to prevent any loss of the right
to bring, support or join proceedings by reason of applicable limitation
periods, shall not constitute Enforcement Action.


 


“Enforcement Notice”
means a notice to the Security Agent delivered by the Enforcing Senior
Creditors instructing the Security Agent to enforce the Transaction Security in
the manner provided for therein and in accordance with the Security Enforcement
Principles.


 


6

















 


“Enforcing Senior Creditors”
means one of the following classes of Senior Creditors, which has (i) provided
an Acceleration Notice to the Security Agent where the Security Agent has not
received any prior notice of an Acceleration Event, and (ii) simultaneously
provided Acceleration Notices to the other relevant Agents:


 


(a)                                     the Majority RCF
Finance Parties (acting through the RCF Agent);


 


(b)                                     the Majority OeKB
Lenders (acting through the OeKB Agent);


 


(c)                                      the Bonds Required
Holders (acting through the Bond Trustee); or


 


(d)                                     the Majority Pari
Passu Lenders (acting through the Pari Passu Agent),


 


and which shall be the class of Senior
Creditors which has the authority to instruct the Security Agent in accordance
with this Agreement.


 


“Event of Default”
means any event or circumstance specified as such in either the RCF Facility
Agreement, the OeKB Facilities, the Bonds Indenture, the Hedging Agreements or
any Pari Passu Document.


 


“Finance Documents”
means the Bonds Finance Documents, the RCF Finance Documents, the OeKB Finance
Documents, any Pari Passu Document, the Hedging Agreements and the Security
Documents.


 


“Guarantee
Liabilities” means, in relation to a member of the Group, the
liabilities under the Debt Documents (present or future, actual or contingent
and whether incurred solely or jointly) it may have to a Creditor or Debtor as
or as a result of its being a guarantor or surety (including, without
limitation, liabilities arising by way of guarantee, indemnity, contribution or
subrogation and in particular any guarantee or indemnity arising under or in
respect of the Finance Documents).


 


“Hedge Counterparty”
means:


 


(a)                                     any person which is
named on the signing pages as a Hedge Counterparty and;


 


(b)                                     any person which
becomes Party as a Hedge Counterparty pursuant to Clause 19.6 (Creditor/Agent Accession Undertaking).


 


“Hedge
Counterparty Obligations” means the obligations owed by any Hedge
Counterparty to the Debtors under or in connection with the Hedging Agreements.


 


“Hedging Agreements”
means any master agreement, confirmation, schedule or other agreement entered
into or to be entered into by a Debtor and a Hedge Counterparty for the purpose
of hedging the types of liabilities and/or risks in relation to the interest
rates or currency exchange which, at the time that that master agreement,
confirmation, schedule or other agreement (as the case may be) is entered into,
are permitted under the RCF Finance Documents, the OeKB Finance Documents and
the Bonds Finance Documents.


 


“Hedging Liabilities”
means the Liabilities owed by any Debtor to the Hedge Counterparties under or
in connection with the Hedging Agreements.


 


7














 


“Holding Company” has the meaning given to
the term “Holding Company” in the RCF Facility Agreement.


 


“Impaired Security Agent” means the Security Agent at any
time when:


 


(a)                                     it has failed
to make (or has noticed a Party that it will not make) a payment required to be
made by it under the Finance Documents by the due date for payment;


 


(b)                                     the Security
Agent otherwise rescinds or repudiates a Finance Document; or


 


(c)                                      an Insolvency
Event (as defined in the RCF Facility Agreement) has occurred and is continuing
with respect to the Security Agent;


 


unless, in the case of paragraph (a) above:


 


(ii)                                      its failure to
pay is caused by:


 


(A)                                   administrative
or technical error; or


 


(B)                                  a Disruption
Event (as defined in the RCF Facility Agreement)


 


payment is
made within 5 Business Days of its due date; or


 


(iii)                                   the Security
Agent is disputing in good faith whether it is contractually obliged to make
the payment in question.


 


“Insolvency Event” means, in relation to any Debtor or Sappi
Manufacturing:


 


(a)                                     any resolution
is passed or order made for the winding up, dissolution, administration or
reorganisation of that Debtor or Sappi Manufacturing, a moratorium is declared
in relation to any indebtedness of that Debtor or Sappi Manufacturing or an
administrator is appointed to that Debtor or Sappi Manufacturing;


 


(b)                                     any
composition, compromise, assignment or arrangement is made with any of its
creditors;


 


(c)                                      the
appointment of any liquidator, receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect of that Debtor
or Sappi Manufacturing or any of its assets; or


 


(d)                                     any analogous
procedure or step is taken in any jurisdiction.


 


“Intra-Group Lenders” means each member of the Group (other
than the Issuer) which has made a loan available to, granted credit to or made
any other financial arrangement having similar effect with another member of
the Group and which is named on the signing pages as an Intra-Group Lender
or which becomes a party as an Intra-Group Lender in accordance with the terms
of Clause 19 (Changes to the Parties).


 


“Intra-Group Liabilities” means the Liabilities owed by any
member of the Group to any of the Intra-Group Lenders other than inter-company
liabilities incurred in the


 


8

















 


ordinary
course of business in connection with the cash management operations of the
Group.


 


“ISDA Master Agreement” means a 1992 ISDA
Master Agreement or a 2002 ISDA Master Agreement.


 


“Issuer” means PE Paper Escrow GmbH.


 


“Liabilities” means all present and future liabilities and
obligations at any time of any member of the Group to any Creditor under the
Debt Documents, both actual and contingent and whether incurred solely or
jointly or in any other capacity together with any of the following matters
relating to or arising in respect of those liabilities and obligations:


 


(a)                                     any
refinancing, novation, deferral or extension;


 


(b)                                     any further
advance which may be made under any agreement or instrument supplemental to any
relevant Debt Document together with any related interest, fees and costs;


 


(c)                                      any claim for
breach of representation, warranty or undertaking or on an event of default or
under any indemnity given under or in connection with any document or agreement
evidencing or constituting any other liability or obligation falling within
this definition;


 


(d)                                     any claim for
damages or restitution; and


 


(e)                                     any claim as a
result of any recovery by any Debtor of a Payment on the grounds of preference
or otherwise,


 


and
any amounts which would be included in any of the above but for any discharge,
non-provability, unenforceability or non-allowance of those amounts in any
insolvency or other proceedings.


 


“Liabilities Acquisition” means, in relation
to a person and to any Liabilities, a transaction where that person:


 


(a)                                     purchases by
way of assignment or transfer;


 


(b)                                     enters into
any sub-participation in respect of; or


 


(c)                                      enters into
any other agreement or arrangement having an economic effect substantially
similar to a sub-participation in respect of,


 


the
rights and benefits in respect of those Liabilities.


 


“Major Event of Default” means each of the Events of Default
listed in paragraph (i) to (xi) of Clause 1.2(d) (Construction) together with any Event of Default under
Clause 6.01(i), (ii), (iii) (only in respect of a failure to purchase
Bonds), (v) (only in respect of Clauses 4.08, 4.10 and 4.12), (vii), (ix),
(x) and (xi) of the Bonds Indenture.


 


9

















 


“Majority OeKB Lenders” means the “Majority Lenders” as such
term is defined in the New OeKB Facility but calculated for the purposes of
this Agreement on the basis of the aggregate commitments under all of the OeKB
Facilities.


 


“Majority Pari Passu Lenders” means, in respect of each Pari
Passu Class, the required number of such Pari Passu Lenders under the relevant
Pari Passu Document.


 


“Majority RCF Finance Parties” has the meaning given to the
term “Majority Lenders” in the RCF Facility Agreement.


 


“Majority Senior Creditors” means:


 


(a)                                     the Majority
RCF Finance Parties;


 


(b)                                     the Bonds
Required Holders;


 


(c)                                      the Majority
OeKB Lenders;


 


(d)                                     the Hedge
Counterparties; and


 


(e)                                     any Majority
Pari Passu Lenders.


 


“Maximum Secured Amount” has the meaning given to it in
Clause 18.1.


 


“Mortgage Deed”  has the
meaning given to it in Clause 12.8(a)(ii).


 


“Mortgage Offer”  has the
meaning given to it in Clause 12.8(a)(i).


 


“New  OeKB Acceleration Event”
means the OeKB Agent exercising any of its rights under clause 22 of the New
OeKB Facility.


 


“New OeKB Facility” means a Euro 400,085,124.80 term facility
to be made available to SPH pursuant to an amendment and restatement of an
existing credit agreement, dated on or about the date hereof and made between,
amongst others, SPH, the Original Guarantors (as referred to therein) and the
Lenders (as referred to therein).


 


“OeKB Acceleration Event” means such time when both a New
OeKB Acceleration Event and a Bank Austria Acceleration Event has occurred.


 


“OeKB Facilities” means the New OeKB Facility and the Bank
Austria Facility.


 


“OeKB Finance Documents” has the meaning given to the term “Finance
Document” in the OeKB Facilities.


 


“OeKB Lenders” means each Lender (as defined in the New OeKB
Facility and the Bank Austria Facility).


 


“OeKB Liabilities” means the Liabilities owed by the Debtors
to the OeKB Lenders under or in connection with the OeKB Finance Documents.


 


“Other Liabilities” means, in relation to a
member of the Group, any trading and other liabilities (not being Borrowing
Liabilities or Guarantee Liabilities) it may have to an Intra-Group Lender or
Debtor.


 


10

















 


“Parallel Debt Obligations” has the
meaning given to it in paragraph (a) of Clause 16.2 (Parallel
Debt (Covenant to pay the Security Agent)).


 


“Pari Passu Agent” means any person or entity appointed in
accordance with the relevant Pari Passu Documents in relation to any relevant
Pari Passu Debt for and on behalf of the Pari Passu Finance Parties as their
trustee, agent or representative and which has acceded as a Party to this
Agreement in such capacity.


 


“Pari Passu Class” means all Pari Passu Lenders which have
made available Pari Passu Debt under or in connection with the same Pari Passu
Document and have equal rights to vote for, or instruct the relevant Pari Passu
Agent to, accelerate that Pari Passu Debt.


 


“Pari Passu Debt” means all present and future moneys, debts
and liabilities due, owing or incurred by any member of the Group to any Pari
Passu Finance Party under or in connection with any Pari Passu Document (in
each case, whether alone or jointly, or jointly and severally, with any other
person, whether actually or contingently and whether as principal, surety or
otherwise) and incurred pursuant to and in accordance with Clause 20.1 (Pari Passu Debt).


 


“Pari Passu Debt Acceleration Event” means the relevant Pari
Passu Agent or the relevant Majority Pari Passu Lenders exercising their rights
to accelerate the Pari Passu Debt under, and in accordance with the relevant
Pari Passu Document.


 


“Pari Passu Default” means an event of default or termination
event howsoever described under the Pari Passu Documents.


 


“Pari Passu Document” means each document or instrument
entered into between any member of the Group and a Pari Passu Finance Party setting
out the terms of any loan, credit or debt facility or security which creates or
evidences any Pari Passu Debt.


 


“Pari Passu Effective Date” has the meaning given to it in
Clause 20.2 (Pari Passu Notice).


 


“Pari Passu Finance Party” means with respect to a particular
Pari Passu Debt, the Pari Passu Agent, the Security Agent and each Pari Passu
Lender which is owed any Pari Passu Debt.


 


“Pari Passu Lenders” means each person which makes available
any Pari Passu Debt to any member of the Group and which has acceded as a Party
to this Agreement in such capacity.


 


“Pari Passu Notice” has the meaning given to it in Clause
20.2 (Pari Passu Notice).


 


“Party” means a party to this Agreement.


 


“Payment” means, in respect of any
Liabilities (or any other liabilities or obligations), a payment, prepayment,
repayment, redemption, defeasance or discharge of those Liabilities (or other
liabilities or obligations).


 


“Permitted Intra-Group Payments” means
payments of interest or repayments of principal, in each case in accordance
with the original terms of the agreement for the 


 


11

















 


relevant
Intra-Group Liabilities where such payments or repayments are made to an
Intra-Group Lender which is also a Debtor.


 


“Permitted Payment” means the Payments
permitted by Clause 8.2 (Permitted
Payments:  Intra-Group Liabilities).


 


“Principal Property” has the meaning given to such term in
the 2012/2032 Indentures.


 


“RCF Acceleration Event” means the RCF Agent
exercising any of its rights under clause 23.17 (Acceleration) of the RCF Facility Agreement.


 


“RCF Facility Agreement” means the revolving credit facility
agreement made between the Company, the Obligors (as defined therein), the RCF
Finance Parties and others dated on or about the date of this Agreement.


 


“RCF Finance Documents” has the meaning given to the term “Finance
Document” in the RCF Facility Agreement.


 


“RCF Finance Parties” means each Finance Party (as defined in
the RCF Facility Agreement).


 


“RCF Finance Parties’ Liabilities” means the
Liabilities owed by the Debtors to the RCF Finance Parties under the RCF
Finance Documents.


 


“Receiver” means a receiver or receiver and manager or
administrative receiver or preliminary receiver (vorläufiger
Insolvenzverwalter) or other similar officer of the whole or any
part of the Charged Property.


 


“Recoveries” has the meaning given to that
term in Clause 14.1 (Order of application).


 


“Relevant Liabilities” means:


 


(a)                                     in the case of
a Creditor:


 


(i)                        the
Liabilities owed to Creditors ranking (in accordance with the terms of this
Agreement) pari passu with or in
priority to that Creditor together with all Agent Liabilities owed to the Agent
of those Creditors; and


 


(ii)                     all present and
future liabilities and obligations, actual and contingent, of the Debtors to
the Security Agent; and


 


(b)                                     in the case of
a Debtor, the Liabilities owed to the Creditors together with the Agent
Liabilities owed to the Agent of those Creditors and all present and future
liabilities and obligations, actual and contingent, of the Debtors to the
Security Agent.


 


“Retiring Security Agent” has the meaning
given to that term in Clause 17 (Change of
Security Agent and Delegation).


 


“Secured Obligations” means all the Senior Liabilities and
all other present and future obligations at any time due, owing or incurred by
any member of the Group and by each Debtor to any Secured Party under the
Finance Documents, both actual and contingent and whether incurred solely or
jointly and as principal or surety or in any other capacity, 


 


12

















 


including
the Parallel Debt Obligations; provided that, prior to the 2012/2032 Final
Notes Redemption, the Secured Obligations secured by Security over Principal
Property shall be subject to the limitations in Clause 18 (Limitation
on Principal Property as Security).


 


“Secured Parties” means the Security Agent, any Receiver or
Delegate, the Agents and the Senior Creditors from time to time but, in the
case of a Senior Creditor, only if it is a party to this Agreement or has
acceded to this Agreement, in the appropriate capacity, pursuant to Clause 19.6
(Creditor/Agent Accession Undertaking).


 


“Security” means a mortgage, charge, pledge, assignment,
transfer, lien, right of set-off, retention or extended retention of title
provision, or any other security interest securing any obligation of any person
or any other agreement or arrangement having the effect of giving security or
preferential ranking to a creditor.


 


“Security Agent’s Spot Rate of Exchange”
means, in respect of the conversion of one currency (the “First Currency”) into another currency (the
“Second Currency”) the Security
Agent’s spot rate of exchange for the purchase of the Second Currency with the
First Currency in the London foreign exchange market at or about 11:00 am
(London time) on a particular day, which shall be notified by the Security
Agent in accordance with paragraph (d) of Clause 16.9 (Security Agent’s obligations).


 


“Security Documents” means:


 


(a)                                     each of the
Transaction Security Documents;


 


(b)                                     any other
document entered into at any time by any of the Debtors creating any Security
in favour of the Secured Parties as security for the Secured Obligations, other
than the Bond Only Security and subject, in every case, to the limitations in
Clause 18 (Limitation on Principal Property as Security);  and


 


(c)                                      any Security
granted under any covenant for further assurance in any of the documents set
out in paragraphs (a) and (b) above.


 


“Security Enforcement Objective” means maximising, so far as
is consistent with prompt and expeditious enforcement of the Transaction
Security, the recovery by the Senior Creditors.


 


“Security Enforcement Principles” means the principles set
out in Schedule 4 (Security Enforcement
Principles).


 


“Security Property” means:


 


(a)                                     the
Transaction Security expressed to be granted in favour of the Security Agent
for itself in respect of the Parallel Debt Obligations and as trustee for the
other Secured Parties and all proceeds of that Transaction Security;


 


(b)                                     all
obligations expressed to be undertaken by a Debtor to pay amounts in respect of


 


(i)                        the
Liabilities to the Security Agent as trustee for the Secured Parties or


 


13

















 


(ii)                     the Parallel Debt
Obligations and, in each case, secured by the Transaction Security, together
with all representations and warranties expressed to be given by a Debtor in
favour of the Security Agent for itself in respect of the Parallel Debt
Obligations and as trustee for the Secured Parties;


 


(c)                                      the Security
Agent’s interest in any trust fund created pursuant to Clause 10 (Turnover of Receipts); and


 


(d)                                     any other
amounts or property, whether rights, entitlements, chooses in action or
otherwise, actual or contingent, which the Security Agent is required by the
terms of the Debt Documents to hold as trustee on trust for the Secured
Parties.


 


“Senior Creditors” means the Agents, the RCF Finance Parties,
the OeKB Lenders, the Bondholders, any Pari Passu Lenders and the Hedge
Counterparties.


 


“Senior Discharge Date” means the date on
which all Senior Liabilities have been fully and finally discharged to the
satisfaction of the RCF Agent (in the case of the RCF Finance Parties’
Liabilities), the OeKB Agent (in the case of the OeKB Liabilities), the Bond
Trustee (in the case of the Bonds Liabilities), each Pari Passu Agent (in the
case of the Pari Passu Debt) and each Hedge Counterparty (in the case of its
Hedging Liabilities), whether or not as the result of an enforcement, and the
Senior Creditors are under no further obligation to provide financial
accommodation to any of the Debtors under the Debt Documents.


 


“Senior Liabilities” means the RCF Finance Parties’
Liabilities, the Hedging Liabilities, the Bond Liabilities, the OeKB
Liabilities and any Pari Passu Debt.


 


“Shared Assurance” means any guarantee,
indemnity or other assurance against loss in respect of any of the Liabilities,
the benefit of which (however conferred) is, to the extent legally possible,
given to all the Secured Parties in respect of their Liabilities.


 


“Shared Transaction Security” means any
Transaction Security which to the extent legally possible:


 


(a)                                     is created in
favour of the Security Agent as trustee for the other Secured Parties in
respect of their Liabilities; or


 


(b)                                     in the case of
any jurisdiction in which effective Security cannot be granted in favour of the
Security Agent as trustee for the Secured Parties is created in favour of:


 


(i)                        all the
Secured Parties in respect of their Liabilities; or


 


(ii)                     the Security Agent
under a parallel debt structure for the benefit of all the Secured Parties


 


and which ranks in the order of priority contemplated in
Clause 2.1 (Transaction Security).


 


“SISA” means
Sappi International SA, a company incorporated in Belgium.


 


“SPH” means Sappi Papier Holding GmbH.


 


14

















 


“Stamp Duty Guidelines” means the stamp duty guidelines set
out in Schedule 5 (Stamp Duty
Guidelines).


 


“Stamp Duty Sensitive Document” means (i) any original
of any Debt Document and (ii) any signed document (including email, PDF,
TIF and other comparable formats) that constitutes a deed (Urkunde)
within the meaning of § 15 of the Austrian Stamp Duty Act (as interpreted
by the Austrian tax authorities), whether documenting or confirming the
entering into of the relevant transaction (rechtserzeugende Urkunde)
or documenting that the relevant transaction has been entered into (rechtsbezeugende Urkunde), or a substitute deed (Ersatzurkunde) within the meaning of § 15 of the
Austrian Stamp Duty Act (as interpreted by the Austrian tax authorities),
including, without limitation, any notarised copy, any certified copy and any
written minutes recording the transactions (Rechtsgeschäfte)
contemplated by, or referenced in, any Debt Document.


 


“Transaction Security” means the Security created or
evidenced or expressed to be created or evidenced under or pursuant to the
Security Documents.


 


1.2                         Construction


 


(a)                                     Unless a
contrary indication appears, a reference in this Agreement to:


 


(i)                        any “Company”, “Creditor”, “Debtor”,
“Hedge Counterparty”, “Intra-Group Lender”, “Issuer”, “Bondholder”, “Agent”,
“Bank Austria Agent”, “OeKB Lender”, “Bond Trustee”, “OeKB Agent”, “Party”,
“Security Agent”, “Secured Party”, “RCF Agent”, “Senior Creditor”,
“Pari Passu Lender”, “Pari Passu Agent” or “RCF Finance
Party” shall be construed to be a reference to it in its capacity as
such and not in any other capacity;


 


(ii)                     any “Creditor”, “Debtor”, “Hedge Counterparty”,
“Party”, “Security Agent”, “Agent”, “Bank Austria
Agent”, “Intra-Group Lender”,
“Bondholder”, “OeKB Lender”,
“Bond Trustee”, “OeKB Agent”,
“Secured Party”, “RCF Agent”, “Senior Creditor”, “Pari
Passu Lender”, “Pari Passu Agent”,
“RCF Finance Party”  or any other person shall be construed so as
to include its successors in title, permitted assigns and permitted transferees
and, in the case of the Security Agent, any person for the time being appointed
as Security Agent or Security Agents in accordance with this Agreement;


 


(iii)                  “assets”
includes present and future properties, revenues and rights of every
description;


 


(iv)                   a “Debt Document” or any other document, agreement or
instrument is (other than a reference to a “Debt
Document” or any other document, agreement or instrument in “original form”) a reference to that Debt
Document, or other document, agreement or instrument, as amended, novated,
supplemented, extended or restated as permitted by this Agreement;


 


(v)                      “enforcing” (or any derivation) the
Transaction Security shall include the appointment of an administrator of a
Debtor by the Security Agent;


 


15

















 


(vi)                   “indebtedness”
includes any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or contingent;


 


(vii)                the “original form” of a “Debt Document” or any other document,
agreement or instrument is a reference to that Debt Document, document,
agreement or instrument as originally entered into;


 


(viii)             a “person” includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or partnership
(whether or not having separate legal personality) or two or more of the
foregoing;


 


(ix)                   a “regulation” includes any regulation, rule, official
directive, request or guideline (whether or not having the force of law) but if
not having the force of law, being a regulation or the like with which the
persons to whom it is addressed customarily comply in the ordinary course of
their business) of any governmental, intergovernmental or supranational body,
agency, department or of any regulatory, self-regulatory or other authority or
organisation;


 


(x)                      “set-off” includes combining accounts and payment netting
except that, in relation to any Hedging Liabilities, “set-off” does not include
payment netting or close-out netting;


 


(xi)                   “shares”
or “share capital” include equivalent
ownership interests (and “shareholder”
and similar expressions shall be construed accordingly); and


 


(xii)                a provision of law is
a reference to that provision as amended or re-enacted.


 


(xiii)             for the purposes of
Clause 22.3 (Stamp Taxes) and Schedule 5 (Stamp Duty Guidelines), “written”
shall mean that what is “written” was translated into letters (Buchstaben) that are or can be made visible on a physical or
electronic device of whatever type and format, including paper and screen, and,
accordingly, communication, document or notices being “in writing”
shall include not only paper-form (letter or fax) communication, documents or
notices but also electronic communication, documents or notices, including by
way of e-mail; and


 


(xiv)              for the purposes of
Clause 22.3 (Stamp Taxes) and Schedule 5 (Stamp Duty Guidelines), “signed”
communication, documents or notices refers to written communication, documents
or notices that carry a manuscript, digital or electronic or other technically
reproduced signature, and “signature”
shall be construed accordingly.


 


(b)                                     Section,
Clause and Schedule headings are for ease of reference only.


 


(c)                                      Terms defined
in or whose interpretation or construction is provided for in the RCF Facility
Agreement as at the date of this Agreement shall have the same 


 


16

















 


meaning when
used in this Agreement unless separately defined or interpreted in this
Agreement.


 


(d)                                     A Default
(other than an Event of Default) is “continuing” if
it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied or waived unless it
is one of the Events of Default under the RCF Facility Agreement listed below
or the equivalent Events of Default in the New OeKB Facility, in which case it
is “continuing” if it has not been waived
(whether or not it is subsequently remedied). 
The Events of Default referred to above means any circumstance
constituting an Event of Default under:


 


(i)                                     clause 23.1 (Non-payment);


 


(ii)                                  clause 23.2 (Financial covenants and other obligations);


 


(iii)                               clause 23.3 (Other obligations) arising as a result of a breach of clause
22.7 (Negative pledge), clause 22.8 (Disposals), 22.16 (Acquisitions and Joint
Ventures) or clause 22.22 (Dividend restriction);


 


(iv)                                clause 23.6 (Insolvency);


 


(v)                                   clause 23.7 (Insolvency Proceedings);


 


(vi)                                clause 23.8 (Creditors’ process);


 


(vii)                             clause 23.9 (Obligor ceasing to be a subsidiary of the Company);


 


(viii)                          clause 23.10 (Unlawfulness);


 


(ix)                                clause 23.11 (Repudiation);


 


(x)                                   clause 23.14 (Cessation of business); or


 


(xi)                                clause 23.15 (Audit qualification),


 


in each case, of the RCF Facility Agreement and/or the
equivalent provisions in the New OeKB Facility.


 


(e)                                     In determining
whether any Liabilities have been irrevocably repaid or discharged, the
Security Agent will disregard contingent liabilities (such as the risk of
clawback from a preference claim) except to the extent that it believes there
is a reasonable likelihood that those contingent liabilities will become actual
liabilities.


 


1.3                         Third Party
Rights


 


(a)                                     Unless
expressly provided to the contrary in this Agreement, a person who is not a
Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Rights Act”) to enforce or to
enjoy the benefit of any term of this Agreement except that the Third Parties
Rights Act shall apply in respect of any Bondholder who by holding a Bond has
effectively agreed to be bound by the provisions of this Agreement.


 


(b)                                     Notwithstanding
any term of this Agreement, the consent of any person who is not a Party is not
required to rescind or vary this Agreement at any time.


 


17














 


(c)                                      Any Receiver
or Delegate may, subject to this Clause 1.3 (Third
Party Rights) and the Third Parties Rights Act, rely on any Clause
of this Agreement which expressly confers rights on it.


 


2.                                RANKING AND PRIORITY


 


2.1                         Transaction
Security


 


Each
of the Parties agrees that the Shared Transaction Security created pursuant to
the Transaction Security Documents shall rank and secure the Senior Liabilities
(but only to the extent that such Transaction Security is expressed to secure
those Liabilities) pari passu and
without any preference between them.


 


2.2                         Intra-Group
Liabilities


 


(a)                                     Each of the
Parties agrees that the Intra-Group Liabilities are postponed and subordinated
to the Liabilities owed by the Debtors to the Senior Creditors.


 


(b)                                     This Agreement
does not purport to rank any of the Intra-Group Liabilities as between
themselves.


 


(c)                                      The
Intra-Group Liabilities shall not be secured by any of the Shared Transaction
Security.


 


2.3                         Bond Only Security


 


Each
of the Parties agree that the Bond Only Security shall secure the Bonds
Liabilities only.


 


2.4                         Security:  Debtors’ Obligations


 


No
Debtor shall (and the Company shall procure that no Group Company save for the
Issuer will) grant to any of the Senior Creditors the benefit of:


 


(a)                                     any Security
in respect of that Senior Creditor’s Senior Liabilities, in addition to the
Shared Transaction Security, unless, and to the extent legally possible, at the
same time it is also offered either:


 


(i)                        to the
Security Agent as trustee for the other Secured Parties in respect of their
Liabilities; or


 


(ii)                     in the case of any
jurisdiction in which effective Security cannot be granted in favour of the
Security Agent as trustee for the Secured Parties:


 


(A)                   to the other Secured
Parties in respect of their Liabilities; or


 


(B)                  to the Security Agent
under a parallel debt structure for the benefit of the other Secured Parties,


 


and ranks in the same order of priority as that contemplated
in Clause 2.1 (Transaction Security);
and


 


18

















 


(b)                                     any guarantee,
indemnity or other assurance against loss in respect of that Senior Creditor’s
Senior Liabilities in addition to those in:


 


(i)                        the original
form of the relevant Finance Documents (other than this Agreement);


 


(ii)                     this Agreement; or


 


(iii)                  any Shared Assurance,


 


unless,
and to the extent legally possible, at the same time it is also offered to the
other Secured Parties in respect of their Liabilities and ranks in the same
order of priority as that contemplated in Clause 2 (Ranking and Priority).


 


3.                                RCF FINANCE PARTIES AND RCF FINANCE PARTIES’ LIABILITIES


 


3.1                         Payment of RCF
Finance Parties’ Liabilities


 


The
Debtors may make Payments to the RCF Finance Parties of the RCF Finance Parties’
Liabilities at any time in accordance with the RCF Finance Documents.


 


4.                                OEKB LENDERS AND OEKB LIABILITIES


 


4.1                         Payment of
OeKB Liabilities


 


The
Debtors may make Payments to the OeKB Lenders of the OeKB Liabilities at any
time in accordance with the OeKB Finance Documents.


 


5.                                BONDHOLDERS AND BONDS LIABILITIES


 


5.1                         Payment of
Bonds Liabilities


 


The
Debtors may make Payments to the Bondholders or the Bond Trustee of the Bonds
Liabilities at any time in accordance with the Bonds Finance Documents.


 


6.                                HEDGE COUNTERPARTIES AND HEDGING LIABILITIES


 


6.1                         Identity of
Hedge Counterparties


 


No person providing hedging arrangements to any Debtor shall
be entitled to share in any of the Transaction Security or in the benefit of
any guarantee or indemnity in respect of any of the liabilities arising in
relation to those hedging arrangements nor shall those liabilities be treated
as Hedging Liabilities unless that person is or becomes a party to this
Agreement as a Hedge Counterparty.


 


6.2                         Payment of
Hedging Liabilities


 


The Debtors may make Payments of the Hedging Liabilities to
any Hedge Counterparty at any time in accordance with the relevant Hedging
Agreement.


 


6.3                         Restriction on
Enforcement:  Hedge Counterparties


 


Subject
to Clause 6.4 (Permitted
Enforcement:  Hedge Counterparties)
the Hedge Counterparties shall not take any Enforcement Action in respect of
any of the Hedging Liabilities or any of the hedging transactions under any of
the Hedging Agreements at any time.


 


19

















 


6.4                         Permitted
Enforcement:  Hedge Counterparties


 


To the extent it is able to do so under the relevant Hedging
Agreement, a Hedge Counterparty may terminate or close-out in whole or in part
any hedging transaction under that Hedging Agreement prior to its stated
maturity, provided that, with the exception of the actions described in
paragraphs (a)(i)-(iii), (a)(v)-(vi), (c) and (subject to any overriding
rights of an Enforcing Senior Creditor) (d) of the definition of
Enforcement Action, no other Enforcement Action is taken.


 


6.5                         Treatment of
Payments due to Debtors on termination of hedging transactions


 


(a)                                     If, on
termination of any hedging transaction under any Hedging Agreement occurring
after a Distress Event, a settlement amount or other amount falls due from a
Hedge Counterparty to the relevant Debtor then that amount shall be paid by
that Hedge Counterparty to the Security Agent, treated as the proceeds of
enforcement of the Transaction Security and applied in accordance with the
terms of this Agreement.


 


(b)                                     The payment of
that amount by the Hedge Counterparty to the Security Agent in accordance with
paragraph (a) above shall discharge the Hedge Counterparty’s obligation to
pay that amount to that Debtor.


 


6.6                         Terms of
Hedging Agreements


 


The
Hedge Counterparties (to the extent party to the Hedging Agreement in question)
and the Debtors party to the Hedging Agreements shall ensure that, at all
times:


 


(a)                                     each Hedging
Agreement documents only hedging arrangements entered into for the purpose of
hedging the types of liabilities described in the definition of “Hedging Agreement” and that no other
hedging arrangements are carried out under or pursuant to a Hedging Agreement;
and


 


(b)                                      each Hedging
Agreement is based on an ISDA Master Agreement.


 


6.7                         Guarantees to
Hedge Counterparties


 


The
provisions of Clause 18 (Guarantees and Indemnity)
of the RCF Facility Agreement are incorporated into this agreement mutatis mutandis for the benefit of the Hedge Counterparties
and references to the terms “Finance Parties” and “Finance Documents” shall be
deemed to refer to “Hedge Counterparties” and “Hedging Agreements”
respectively; provided that in respect of the guarantee by the Company, such
guarantee shall only apply with effect from the date on which the Company
receives appropriate SARB Approval an then only to (i) the Hedging
Liabilities in respect of the transactions (including, without limitation, by
novation) under the Hedging Agreements, in respect of a cross-currency swap
pursuant to which up to USD$300,000,000 notional amount is swapped into Euro,
entered into on or about the date hereof, and (ii) any other Hedging
Liabilities as agreed between the Company and the relevant Hedge Counterparties
from time to time.


 


20

















 


7.                                PARI PASSU LENDERS AND PARI PASSU DEBT


 


7.1                         Payment of
Pari Passu Debt


 


The
Debtors may make Payments of the Pari Passu Debt to the Pari Passu Lenders (or
any trustee or paying agent thereof) at any time in accordance with the Pari
Passu Documents.


 


8.                                INTRA-GROUP LENDERS AND INTRA-GROUP LIABILITIES


 


8.1                         Restriction on
Payment:  Intra-Group Liabilities


 


Prior
to the Senior Discharge Date, the Debtors shall not, and shall procure that no
other member of the Group will, make any Payments of the Intra-Group
Liabilities at any time unless:


 


(a)                                     that Payment
is permitted under Clause 8.2 (Permitted Payments:  Intra-Group Liabilities); or


 


(b)                                     the taking or
receipt of that Payment is permitted under paragraph (c) of Clause 8.7 (Permitted Enforcement:  Intra-Group Lenders).


 


8.2                         Permitted
Payments:  Intra-Group Liabilities


 


(a)                                     Subject to
paragraph (c) below and provided that no Event of Default has occurred
which is continuing, the Debtors may make Payments in respect of the
Intra-Group Liabilities (whether of principal, interest or otherwise) from time
to time when due.


 


(b)                                     Subject to
paragraph (c) below, the Debtors may make Permitted Intra-Group Payments
only in respect of the Intra-Group Liabilities from time to time when due.


 


(c)                                      Payments in
respect of the Intra-Group Liabilities may not be made pursuant to
paragraph (a) or (b) above if, at the time of the Payment, an
Acceleration Event or an Insolvency Event has occurred under any of the Debt
Documents unless:


 


(i)                        prior to the
Senior Discharge Date the Majority Senior Creditors consent to that Payment
being made; or


 


(ii)                     that Payment is made
to facilitate Payment of the Senior Liabilities.


 


8.3                         Payment
obligations continue


 


No
Debtor shall be released from the liability to make any Payment (including of
default interest, which shall continue to accrue) under any Debt Document by
the operation of Clauses 8.1 (Restriction
on Payment:  Intra-Group Liabilities)
and 8.2 (Permitted Payments:  Intra-Group Liabilities) even if
its obligation to make that Payment is restricted at any time by the terms of
any of those Clauses.


 


8.4                         Acquisition of
Intra-Group Liabilities


 


(a)                                     Subject to
paragraph (b) below, each Debtor may, and may permit any other member of
the Group to:


 


(i)                        enter into any
Liabilities Acquisition; or


 


21

















 


(ii)                     beneficially own all
or any part of the share capital of a company that is party to a Liabilities
Acquisition,


 


in respect of any Intra-Group Liabilities at any time.


 


(b)                                     Subject to
paragraph (c) below, no action described in paragraph (a) above may
take place in respect of any Intra-Group Liabilities if:


 


(i)                        that action
would result in a breach of any of the Finance Documents;


 


(ii)                    that action is
between a Debtor and a member of the Group which is not a Debtor and at the
time of that action, an Event of Default has occurred and is continuing under
any of the Debt Documents; or


 


(iii)                  that action is
between a Debtor and another Debtor and at the time of that action, an
Acceleration Event or Insolvency Event has occurred under any of the Debt
Documents.


 


(c)                                      The
restrictions in paragraph (b) above shall not apply if:


 


(i)                        prior to the
Senior Discharge Date the Majority Senior Creditors consent to that action; or


 


(ii)                     that action is taken
to facilitate Payment of the Senior Liabilities.


 


8.5                         Security:  Intra-Group Lenders


 


Prior
to the Senior Discharge Date, the Intra-Group Lenders may not take, accept or
receive the benefit of any Security, guarantee, indemnity or other assurance
against loss in respect of the Intra-Group Liabilities if that Security,
guarantee, indemnity or other assurance against loss is not permitted under the
terms of the Finance Documents.


 


8.6                         Restriction on
enforcement:  Intra-Group Lenders


 


Subject
to Clause 8.7 (Permitted Enforcement:
Intra-Group Lenders), none of the Intra-Group Lenders shall be
entitled to take any Enforcement Action in respect of any of the Intra-Group
Liabilities at any time prior to the Senior Discharge Date except with the
prior consent of the Security Agent.


 


8.7                         Permitted
Enforcement:  Intra-Group Lenders


 


Prior
to the Senior Discharge Date and after the occurrence of an Insolvency Event,
each Intra-Group Lender may only (unless otherwise directed by the Security
Agent or unless the Security Agent has taken, or has given notice that it
intends to take, action on behalf of that Intra-Group Lender in accordance with
Clause 9.4 (Filing of claims)),
exercise any right it may otherwise have against that member of the Group to:


 


(a)                                     accelerate any
of that member of the Group’s Intra-Group Liabilities or declare them
prematurely due and payable or payable on demand;


 


(b)                                     make a demand
under any guarantee, indemnity or other assurance against loss given by that
member of the Group in respect of any Intra-Group Liabilities;


 


(c)                                      exercise any
right of set-off or take or receive any Payment in respect of any Intra-Group
Liabilities of that member of the Group; or


 


22

















 


(d)                                     claim and
prove in the liquidation of that member of the Group for the Intra-Group
Liabilities owing to it.


 


8.8                         Representations:  Intra-Group Lenders


 


On
the date of this Agreement, each Intra-Group Lender which is not a Debtor
represents and warrants to the Senior Creditors, the Security Agent and the
Agents that:


 


(a)                                     it is duly incorporated
(if a corporate person) or duly established (in any other case) and validly
existing under the laws of its jurisdiction of incorporation or formation;


 


(b)                                     the
obligations expressed to be assumed by it in this Agreement are, subject to the
Reservations, legal, valid and binding obligations enforceable in accordance
with its terms; and


 


(c)                                      the entry into
and performance by it of this Agreement does not and will not:


 


(i)                        conflict with
any law or regulation applicable to it, its constitutional documents or to an
extent which could reasonably be expected to have a Material Adverse Effect,
any agreement or instrument binding upon it or any of its assets; or


 


(ii)                     constitute a default
or termination event (however described) under any agreement or instrument
binding on it or any of its assets which has or is reasonably likely to have a
Material Adverse Effect.


 


8.9                         Intra-Group
Lenders’ Agent


 


(a)                                     Each
Intra-Group Lender (other than SISA) irrevocably appoints SISA to act on its
behalf as its agent in relation to this Agreement and irrevocably authorises:


 


(i)                        SISA on its
behalf to supply all information concerning itself contemplated by this
Agreement to the other Parties and to give and receive all notices, consents
and instructions, to agree, accept and execute on its behalf all documents in
connection with this Agreement (including amendments and variations of, and
consents under, this Agreement) and to take such other action as may be
necessary or desirable under, or in connection with, this Agreement; and


 


(ii)                     each other Party to
give any notice, demand or other communication to that Intra-Group Lender
pursuant to this Agreement to SISA.


 


(b)                                     Each
Intra-Group Lender (other than SISA) confirms that:


 


(i)                        it will be
bound by any action taken by SISA under, or in connection with, this Agreement;
and


 


(ii)                     each other Party may
rely on any action purported to be taken by SISA on behalf of that Intra-Group
Lender.


 


(c)                                      Each of the
Intra-Group Lenders hereby relieves the Intra-Group Lenders’ Agent from the restrictions
of self-dealing pursuant to Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) or any other
applicable 


 


23

















 


restrictions of
self-dealing pursuant to any other applicable law, in each case to the extent
legally possible, to perform its duties and obligations as Intra-Group Lenders’
Agent hereunder.


 


9.                                EFFECT OF INSOLVENCY EVENT


 


9.1                         Payment of
distributions


 


(a)                                     After the
occurrence of an Insolvency Event, any Intra-Group Lender entitled to receive a
distribution out of the assets of the relevant member of the Group subject to
the Insolvency Event in respect of Liabilities owed to that Intra-Group Lender
shall, to the extent it is able to do so, including pursuant to applicable law
and regulation, direct the person responsible for the distribution of the
assets of the relevant member of the Group to pay that distribution to the
Security Agent until the Liabilities owing to the Secured Parties have been
paid in full.


 


(b)                                     The Security
Agent shall apply distributions paid to it under paragraph (a) above in
accordance with Clause 14 (Application of
Proceeds).


 


9.2                         Set-Off


 


To the extent that any member of the Group’s Liabilities are
discharged by way of set-off (mandatory or otherwise) after the occurrence of
an Insolvency Event any Intra-Group Lender which benefited from that set-off
shall pay an amount equal to the amount of the Liabilities owed to it which are
discharged by that set-off to the Security Agent for application in accordance
with Clause 14 (Application of Proceeds).


 


9.3                         Non-cash
distributions


 


If
the Security Agent or any other Secured Party receives a distribution in a form
other than in cash in respect of any of the Liabilities, the Liabilities will
not be reduced by that distribution until and except to the extent that the
realisation proceeds are actually applied towards the Liabilities.


 


9.4                         Filing of
claims


 


Until
the Senior Discharge Date, after the occurrence of an Insolvency Event each
Intra-Group Lender irrevocably authorises the Security Agent (acting in
accordance with Clause 9.6 (Security Agent
instructions)), on its behalf, to:


 


(a)                                     take any
Enforcement Action (in accordance with the terms of this Agreement) against the
relevant member of the Group;


 


(b)                                     demand, sue,
prove and give receipt for any or all of the relevant member of the Group’s
Liabilities;


 


(c)                                      collect and
receive all distributions on, or on account of, any or all of the relevant
member of the Group’s Liabilities; and


 


(d)                                     file claims,
take proceedings and do all other things the Security Agent considers
reasonably necessary to recover the relevant member of the Group’s Liabilities.


 


24

















 


9.5                         Creditors’
actions


 


Each
Intra-Group Lender will:


 


(a)                                     do all things
that the Security Agent (acting in accordance with Clause 9.6 (Security Agent Instructions)) requests in
order to give effect to this Clause 9; and


 


(b)                                     if the
Security Agent is not entitled to take any of the actions contemplated by this
Clause 9 or if the Security Agent (acting in accordance with Clause 9.6 (Security Agent Instructions)) requests
that an Intra-Group Lender take that action, undertake that action itself in
accordance with the instructions of the Security Agent (acting in accordance with
Clause 9.6 (Security Agent Instructions))
or grant a power of attorney to the Security Agent (on such terms as the
Security Agent (acting in accordance with Clause 9.6 (Security Agent Instructions)) may
reasonably require) to enable the Security Agent to take such action.


 


9.6                         Security Agent
instructions


 


For
the purposes of Clause 9.4 (Filing of claims)
and Clause 9.5 (Creditors’ actions)
the Security Agent shall act:


 


(a)                                     on the
instructions of the Enforcing Senior Creditors; or


 


(b)                                     in the absence
of any such instructions, in accordance with paragraph (c) of Clause 12.3
(Enforcement Instructions).


 


10.                         TURNOVER OF RECEIPTS


 


10.1                  Turnover by the
Senior Creditors


 


Subject
to Clause 10.3 (Permitted assurance and
receipts), if at any time prior to the Senior Discharge Date, any
Senior Creditor receives or recovers the proceeds of any enforcement of any
Transaction Security (whether before or after an Insolvency Event) except in
accordance with Clause 14 (Application of Proceeds)
that
Senior Creditor will:


 


(i)                        in relation to
receipts and recoveries not received or recovered by way of set-off:


 


(A)                   hold an amount of
that receipt or recovery equal to the Relevant Liabilities (or if less, the
amount received or recovered) on trust or, in the case of Senior Creditors
registered in the Netherlands, as custodian (bewaarnemer)
for the Security Agent and separate from other assets, property or funds and
promptly, upon demand, pay that amount to the Security Agent for application in
accordance with the terms of this Agreement; and


 


(B)                  promptly pay an
amount equal to the amount (if any) by which the receipt or recovery exceeds
the Relevant Liabilities to the Security Agent for application in accordance
with the terms of this Agreement; and


 


25

















 


(ii)                     in relation to
receipts and recoveries received or recovered by way of set-off, promptly pay
an amount equal to that recovery to the Security Agent for application in
accordance with the terms of this Agreement.


 


10.2                  Turnover by the
Intra-Group Lenders


 


Subject
to Clause 10.3 (Permitted assurance and
receipts), if at any time prior to the Senior Discharge Date, any
Intra-Group Lender receives or recovers:


 


(a)                                     any Payment or
distribution of, or on account of or in relation to, any of the Liabilities
which is not either:


 


(i)                        a Permitted
Payment; or


 


(ii)                     made in accordance
with Clause 14 (Application of Proceeds);


 


(b)                                     other than
where Clause 9.2 (Set-Off)
applies, any amount by way of set-off in respect of any of the Liabilities owed
to it which does not give effect to a Permitted Payment;


 


(c)                                      notwithstanding
paragraphs (a) and (b) above, and other than where Clause 9.2 (Set-Off) applies, any amount:


 


(i)                        on account of,
or in relation to, any of the Liabilities:


 


(A)                   after the occurrence
of a Distress Event; or


 


(B)                  as a result of any
other litigation or proceedings against a Debtor  or a member of the Group where the
Intra-Group Lender has provided Transaction Security in respect of Intra-Group
Liabilities owed by that member of the Group (other than after the occurrence
of an Insolvency Event in respect of that Debtor or that member of the Group);
or


 


(ii)                     by way of set-off in
respect of any of the Liabilities owed to it after the occurrence of a Distress
Event; or


 


(d)                                     other than
where Clause 9.2 (Set-Off)
applies, any distribution in cash or in kind or Payment of, or on account of or
in relation to, any of the Liabilities owed by any Debtor which is not in
accordance with Clause 14 (Application of
Proceeds) and which is made as a result of, or after, the occurrence
of an Insolvency Event in respect of that Debtor,


 


that Intra-Group Lender will:


 


(i)                        in relation to
receipts and recoveries not received or recovered by way of set-off:


 


(A)                   hold an amount of
that receipt or recovery equal to the Relevant Liabilities (or if less, the
amount received or recovered) on trust or, in the case of Intra-Group Lenders
registered in the Netherlands, as custodian (bewaarnemer)
for the Security Agent and separate from other assets, property or funds and
promptly, upon demand, pay that 


 


26

















 


amount to the
Security Agent for application in accordance with the terms of this Agreement;
and


 


(B)                  promptly pay an
amount equal to the amount (if any) by which the receipt or recovery exceeds
the Relevant Liabilities to the Security Agent for application in accordance
with the terms of this Agreement; and


 


(ii)                     in relation to
receipts and recoveries received or recovered by way of set-off, promptly pay
an amount equal to that recovery to the Security Agent for application in
accordance with the terms of this Agreement.


 


10.3                  Permitted assurance
and receipts


 


Nothing
in this Agreement shall restrict the ability of any Senior Creditor to:


 


(a)                                     arrange with
any person which is not a member of the Group any assurance against loss in
respect of, or reduction of its credit exposure to, a Debtor (including
assurance by way of credit based derivative or sub-participation); or


 


(b)                                     make any
assignment or transfer permitted by Clause 18 (Changes
to the Parties),


 


which
is permitted by the relevant Finance Document and that Senior Creditor shall
not be obliged to account to any other Party for any sum received by it as a
result of that action.


 


10.4                  Sums received by
Debtors


 


If
any of the Debtors receives or recovers any sum which, under the terms of any
of the Debt Documents, should have been paid to the Security Agent, that Debtor
will:


 


(a)                                     hold an amount
of that receipt or recovery equal to the Relevant Liabilities (or if less, the
amount received or recovered) on trust or, in case of Debtors registered in the
Netherlands, as custodian (bewaarnemer)
for the Security Agent and separate from other assets, property or funds and
promptly pay that amount to the Security Agent for application in accordance
with the terms of this Agreement; and


 


(b)                                     promptly pay
an amount equal to the amount (if any) by which the receipt or recovery exceeds
the Relevant Liabilities to the Security Agent for application in accordance
with the terms of this Agreement.


 


10.5                  Saving provision


 


If,
for any reason, any of the trusts expressed to be created in this
Clause 10 (Turnover of Receipts)
should fail or be unenforceable, the affected Creditor or Debtor will promptly
pay an amount equal to that receipt or recovery to the Security Agent to be
held on trust by the Security Agent for application in accordance with the
terms of this Agreement.


 


10.6                  Non-creation of
charge


 


Nothing
in this Clause 10 or any other provision of this Agreement is intended to or
shall create a charge or other security.


 


27














 


11.                         REDISTRIBUTION


 


11.1                  Recovering
Creditor’s rights


 


(a)                                     Any
amount paid by a Creditor (a “Recovering
Creditor”) to the Security Agent under Clause 9 (Effect of Insolvency Event) or Clause 10 (Turnover of Receipts) shall be treated as having been paid by
the relevant Debtor and distributed to the Security Agent, the Agents and the
Senior Creditors (each a “Sharing Creditor”)
in accordance with the terms of this Agreement.


 


(b)                                     On
a distribution by the Security Agent under paragraph (a) above of a
Payment received by a Recovering Creditor from a Debtor, as between the
relevant Debtor and the Recovering Creditor an amount equal to the amount
received or recovered by the Recovering Creditor and paid to the Security Agent
(the “Shared Amount”) will be treated as not
having been paid by that Debtor and to the extent permitted by law, the
liability of the relevant Debtor to the relevant Creditor shall be increased
(or shall be treated as not having been reduced) by an amount equal to the
Shared Amount made by such Creditor to the Security Agent pursuant to paragraph
(a) above and the relevant Debtor shall indemnify the relevant Creditor
against any loss it may suffer as a result of paying such Shared Amount.


 


11.2                  Reversal
of redistribution


 


(a)                                     If
any part of the Shared Amount received or recovered by a Recovering Creditor
becomes repayable to a Debtor and is repaid by that Recovering Creditor to that
Debtor, then:


 


(i)                        each
Sharing Creditor shall, upon request of the Security Agent, pay to the Security
Agent for the account of that Recovering Creditor an amount equal to the
appropriate part of its share of the Shared Amount received by it (together
with an amount as is necessary to reimburse that Recovering Creditor for its
proportion of any interest on the Shared Amount which that Recovering Creditor
is required to pay) (the “Redistributed
Amount”); and


 


(ii)                     as
between the relevant Debtor and each relevant Sharing Creditor, an amount equal
to the relevant Redistributed Amount will be treated as not having been paid by
that Debtor.


 


(b)                                     The
Security Agent shall not be obliged to pay any Redistributed Amount to a
Recovering Creditor under paragraph (a)(i) above until it has been able to
establish to its satisfaction that it has actually received that Redistributed Amount
from the relevant Sharing Creditor.


 


11.3                  Deferral
of Subrogation


 


No Creditor or Debtor will
exercise any rights which it may have by reason of the performance by it of its
obligations under the Debt Documents to take the benefit (in whole or in part
and whether by way of subrogation or otherwise) of any rights under the Debt
Documents of any Creditor which ranks ahead of it in accordance with the
priorities set out in Clause 2 (Ranking and Priority)
until such time as all of the Liabilities owing 


 


28

















 


to each prior ranking
Creditor (or, in the case of any Debtor, owing to each Creditor) have been
irrevocably paid in full.


 


11.4                  Exceptions


 


(a)                                     This
Clause 11 (Redistribution) shall not apply to the
extent that the Recovering Creditor would not, after making any payment
pursuant to this Clause, have a valid and enforceable claim against the
relevant Debtor and in such case, the Recovering Creditor shall be entitled to
rely on Clause 15 (Equalisation).


 


(b)                                     A
Recovering Creditor is not obliged to share with any Secured Party any amount
which the Recovering Creditor has received or recovered as a result of taking
legal or arbitration proceedings, if:


 


(i)                        it
notified that Secured Party of the legal or arbitration proceedings; and


 


(ii)                     that
Secured Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received
notice and did not take separate legal or arbitration proceedings.


 


12.                         ENFORCEMENT OF TRANSACTION SECURITY


 


12.1                  Enforcement


 


The Secured Parties shall
not give instructions to the Security Agent to enforce the Transaction Security
other than in accordance with this Agreement.


 


12.2                  Instructions
to enforce - consultation


 


(a)                                     Until
the Senior Discharge Date and subject to paragraph (b) below, after the
relevant Agent of the Enforcing Senior Creditors (the “Enforcing
Senior Creditors’ Agent”) has delivered an Acceleration Notice to
the other relevant Agents and the Security Agent but before giving any
Enforcement Notice, the Enforcing Senior Creditors’ Agent and the other
relevant Agents shall consult with one another and with the Security Agent in
good faith, with a view to co-ordinating those instructions, for a period of up
to 10 Business Days commencing from the date which is two days after the date
of the Acceleration Notice (or such shorter period as the Agents may agree)
(the “Consultation Period”).


 


(b)                                     The
Enforcing Senior Creditors’ Agent shall not be obliged to consult in accordance
with paragraph (a) above if:


 


(i)                        the
Transaction Security has become enforceable as a result of an Insolvency Event;
and


 


(ii)                     the
Enforcing Senior Creditors’ Agent or the Security Agent determines in good
faith (and notifies the other Agents and the Security Agent) that to enter into
such consultations and thereby delay the commencement of enforcement of the
Transaction Security could reasonably be expected to have a material adverse
effect on:


 


(A)                   their
ability to enforce any of the Transaction Security; or


 


29

















 


(B)                  the
realisation proceeds of any enforcement of the Transaction Security.


 


12.3                  Enforcement
Instructions


 


(a)                                     The
Security Agent may refrain from enforcing the Transaction Security unless
instructed otherwise by the Enforcing Senior Creditors.


 


(b)                                     Subject
to Clause 12.2 (Instructions to enforce - consultation)
and the Transaction Security having become enforceable in accordance with its
terms, the Enforcing Senior Creditors may give or refrain from giving
instructions to the Security Agent to enforce or refrain from enforcing the
Transaction Security as they see fit.


 


(c)                                      If,
following the end of the Consultation Period, the Security Agent has not
received an Enforcement Notice or if the Enforcing Senior Creditors have
instructed the Security Agent to refrain from enforcing the Transaction
Security, then:


 


(i)                        if
the Security Agent has received instructions from another Agent not being the
Enforcing Senior Creditors’ Agent (which, following an Acceleration Event, is
acting on behalf of a class of Senior Creditors set out in paragraphs (a) – (d) of
the definition of Enforcing Senior Creditors) to enforce the Transaction
Security (the “Alternative Instructions”) the
Security Agent shall enforce the Transaction Security in accordance with those
Alternative Instructions and in accordance with the Security Enforcement
Principles; and


 


(ii)                     if the
Security Agent has not received any Alternative Instructions, the Security
Agent may (but shall not be obliged to) follow such instructions as it (in its
absolute discretion) determines are in the best interests of achieving the
Security Enforcement Objective or, if it determines (in its absolute
discretion) that it has received no instructions which are in the best
interests of achieving the Security Enforcement Objective, the Security Agent
may (but shall not be obliged to) act as it sees fit, in accordance with the
Security Enforcement Principles.


 


(d)                                     In
making a determination under sub-paragraph (c)(ii) above, the Security
Agent may retain the services of a reputable and independent investment bank
(the “Investment
Bank”).  The Investment Bank shall be instructed to
advise on the optimal method of enforcing the Transaction Security so as to
achieve the Security Enforcement Objective. 
Each Debtor must indemnify the Security Agent on demand against the
reasonable fees and expenses of any Investment Bank.


 


(e)                                     The
Security Agent shall incur no liability to any Secured Party in exercising in
good faith any discretion referred to in this Subclause or if it acts on the
advice of the Investment Bank.


 


(f)                                         The
Security Agent is entitled to rely on and comply with instructions given in
accordance with this Clause 12.3 (Enforcement
Instructions).


 


30

















 


(g)                                     Any
instructions given in accordance with this Clause 12.3 will be binding on all
of the Secured Parties.


 


12.4                  Manner
of enforcement


 


If the Transaction
Security is being enforced pursuant to Clause 12.3 (Enforcement
Instructions), the Security Agent shall enforce the Transaction
Security in such manner (including, without limitation, the selection of any
administrator of any Debtor to be appointed by the Security Agent) as the
Enforcing Senior Creditors shall instruct in the Enforcement Notice or, in the
absence of any such instructions, in accordance with paragraph (c) of
Clause 12.3 (Enforcement Instructions) and the
Security Enforcement Principles, and in any case always pursuant to the Security
Enforcement Objective.


 


12.5                  Co-operation


 


(a)                                     If
the Security Agent (or any other person entitled under this Agreement to
enforce the Transaction Security) is, in the opinion of the Enforcing Senior
Creditors’ Agent, taking reasonable efforts to implement an enforcement sale or
other disposal of an asset subject to the Security created by the Security
Documents as expeditiously as reasonably practicable and such enforcement sale
or disposal is being implemented diligently, the Creditors shall act in accordance
with the instructions of the Security Agent with respect to the enforcement of
Security in respect of the relevant assets. 
Where those assets are shares in any member of the Group (the “relevant member”) owned by a Debtor, the Creditors
shall act in accordance with the instructions of the Security Agent (or, as
applicable, that other person) with respect to the enforcement of Security in
respect of the relevant member and its Subsidiaries and their respective
assets.


 


(b)                                     No
Creditor shall be responsible to any other Creditor or Debtor for any
enforcement or failure to enforce or to maximise the proceeds of any
enforcement of the Security Documents except (in the case only of liability of
the Enforcing Senior Creditors or the Creditors giving the Alternative
Instructions to the Senior Creditors) for gross negligence or a wilful failure
to comply with the Security Enforcement Principles and the Security Enforcement
Objective.  The Security Agent (unless
directed otherwise) and any other person entitled to enforce the Security
Documents (or direct the Security Agent to do so) may cease any such
enforcement at any time.


 


12.6                  Exercise
of voting rights


 


(a)                                     Each
Creditor other than the Bond Trustee agrees with the Security Agent that it
will, or will procure that its Agent on its behalf will, cast its vote in any
proposal put to the vote by or under the supervision of any judicial or
supervisory authority in respect of any insolvency, pre-insolvency or
rehabilitation or similar proceedings relating to any member of the Group as
instructed by the Security Agent but only where such vote relates to the
enforcement of Transaction Security in accordance with the Security Enforcement
Principles.


 


31

















 


(b)                                     The
Security Agent shall give instructions for the purposes of paragraph (a) of
this Clause 12.6 (Exercise of voting
rights) as directed by the Enforcing Senior Creditors.


 


12.7                  Waiver
of rights


 


To the extent permitted
under applicable law and subject to Clause 12.3 (Enforcement Instructions), Clause 12.4 (Manner of enforcement), Clause 14 (Application of Proceeds) and paragraph (c) of
Clause 13.2 (Distressed Disposals),
each of the Secured Parties and the Debtors waives all rights it may otherwise
have to require that the Transaction Security be enforced in any particular
order or manner or at any particular time or that any sum received or recovered
from any person, or by virtue of the enforcement of any of the Transaction
Security or of any other security interest, which is capable of being applied
in or towards discharge of any of the Secured Obligations is so applied.


 


12.8                  Austrian Mortgages


 


(a)                                     The
Parties acknowledge that, as conditions to the Signing Date:


 


(i)                        Sappi
Gratkorn GmbH has delivered a mortgage deed (Hypothekarurkunde)
in relation to the Austrian Land Mortgage, duly executed by Sappi Gratkorn GmbH
as mortgagor but not countersigned by the Security Agent (the “Mortgage Offer”); and


 


(ii)                     Sappi
MagnoStar GmbH has delivered a mortgage deed (Pfandbestellungsurkunde)
in relation to the Austrian Buildings on Third Party Land Mortgage, duly
executed by Sappi Gratkorn GmbH as pledgor and the Security Agent as pledgee
(the “Mortgage Deed”),


 


to the Security Agent.


 


(b)                                     Subject
to paragraph (c) below (and without prejudice to the provisions of Clause
16.14 (No responsibility to perfect Transaction Security),
on the occurrence of an Austrian Mortgages Perfection Trigger, the Security
Agent shall take any such action it deems
fit and appropriate for the purpose of creating and perfecting the Austrian
Mortgages, including, without limitation, to countersign the Mortgage Offer and
to subsequently file for registration of the Austrian Land Mortgage with the
competent land register and/or to deposit the Mortgage Deed concerning the Austrian
Buildings on Third Party Land Mortgage with the
collection of documents of the competent land register (“Perfection
Action”) and, notwithstanding any other provisions of the Debt
Documents, SPH herewith irrevocably agrees to indemnify and hold harmless the
Security Agent against any losses, liabilities, fees, costs and expenses
(including, without limitation, stamp duties) incurred by the Security Agent in
connection with the creation and perfection or attempted creation and/or perfection
of the Austrian Mortgages (“Perfection Costs”).


 


(c)                                      Following an Austrian Mortgages Perfection Trigger, SPH shall within 5
Business Days of (i) notice from the Security Agent that it intends to
take Perfection Action, or (ii) any notice following commencement of any
Perfection Action, pay an amount equal to the Security
Agent’s reasonably estimated 


 


32

















 


Perfection
Costs to an interest-bearing account in the name of SPH (the “Account”) and shall satisfy the following conditions:


 


(i)                        the
Account shall be held with the Security Agent;


 


(ii)                     until no
amount of Perfection Costs is or may be outstanding, withdrawals from the
Account may only be made to pay amounts due and payable to the Security Agent,
or as directed by the Security Agent, in respect of the Perfection Costs; and


 


(iii)                  SPH shall
execute a security document over that account, in form and substance
satisfactory to the Security Agent, creating a first ranking security interest
over the Account,


 


provided that the Security
Agent shall release any such amount (or part of such amount) to SPH as soon as
reasonably practicable after the Security Agent is satisfied (acting
reasonably) that such amount will not be required to cover such estimated Perfection
Costs or any actual or contingent Perfection Costs.


 


13.                         PROCEEDS OF DISPOSALS


 


13.1                  Non-Distressed
Disposals


 


(a)                                     In
this Clause 13.1 “Disposal Proceeds”
means the proceeds of a Non-Distressed Disposal (as defined in paragraph (b) below).


 


(b)                                     If,
in respect of a disposal of:


 


an asset by a Debtor which
is subject to the Transaction Security to a person or persons outside the Group
which:


 


(A)                   is
permitted under the RCF Finance Documents and/or consent of the Super-Majority
Lenders (as defined in the RCF Facility Agreement) has been obtained to release
the relevant Transaction Security in connection with such disposal;


 


(B)                  is
permitted under the OeKB Facilities and/or consent of the Super-Majority
Lenders (as defined in the New OeKB Facility) has been obtained to release the
relevant Transaction Security in connection with such disposal;


 


(C)                 is
permitted under the Bonds Indenture;


 


(D)                 is
permitted under the relevant Pari Passu Document; and


 


(E)                  that
disposal is not a Distressed Disposal,


 


(a “Non-Distressed Disposal”),


 


33

















 


the Security Agent is
irrevocably authorised (at the cost of the relevant Debtor and without any
consent, sanction, authority or further confirmation from any Creditor or
Debtor) but subject to paragraph (c) below:


 


(i)                        to
release the Transaction Security or any other claim (relating to a Debt
Document) over that asset;


 


(ii)                     where
that asset consists of shares in the capital of a Debtor, to release the
Transaction Security or any other claim (relating to a Debt Document) over that
Debtor’s assets;


 


(iii)                  to
execute and deliver or enter into any release of the Transaction Security or
any claim described in paragraphs (i) and (ii) above and issue any
certificates of non-crystallisation of any floating charge or any consent to
dealing that may, in the discretion of the Security Agent, be considered
necessary or desirable.


 


(c)                                      If
that Non-Distressed Disposal is not made, each release of Transaction Security
or any claim described in paragraph (b) above shall have no effect and the
Transaction Security or claim subject to that release shall continue in such
force and effect as if that release had not been effected.


 


(d)                                     If
any Disposal Proceeds are required to be applied in mandatory prepayment of any
of the Senior Liabilities pursuant to the terms of the relevant Finance
Documents then the Disposal Proceeds shall be applied in or towards Payment, pro rata, of such Senior Liabilities in accordance with the
terms of the relevant Finance Documents and the consent of any other Party
shall not be required for that application.


 


13.2                  Distressed
Disposals


 


(a)                                     If
a Distressed Disposal is being effected the Security Agent is irrevocably
authorised (at the cost of the relevant Debtor and without any consent,
sanction, authority or further confirmation from any Creditor or Debtor or the
Bond Security Agent):


 


(i)                        release of Transaction Security/Bond Only
Security/non-crystallisation certificates:  to release the Transaction Security or Bond
Only Security, as the case may be, or any other claim over that asset and
execute and deliver or enter into any release of that Transaction Security or
Bond Only Security, as the case may be, or claim and issue any letters of
non-crystallisation of any floating charge or any consent to dealing that may,
in the discretion of the Security Agent, be considered necessary or desirable;


 


34

















 


(ii)                     release of liabilities and Transaction Security/Bond Only
Security on a share sale (Debtor):  if the asset which is disposed of consists of
shares in the capital of a Debtor, to release (or instruct to release):


 


(A)                   that
Debtor and any Subsidiary of that Debtor from all or any part of:


 


(1)                   its
Borrowing Liabilities;


 


(2)                   its
Guarantee Liabilities; and


 


(3)                   its Other
Liabilities;


 


(B)                  any
Transaction Security granted by that Debtor or any Subsidiary of that Debtor
over any of its assets;


 


(C)                 any other
claim of an Intra-Group Lender, or another Debtor over that Debtor’s assets or
over the assets of any Subsidiary of that Debtor; and


 


(D)                 where
that Debtor is SPH, to instruct the Bond Security Agent to release the Bond
Only Security,


 


on behalf of the relevant
Creditors and Debtors;


 


(iii)                  release of liabilities and Transaction Security/Bond Only
Security on a share sale (Holding Company):  if the asset which is disposed of consists of
shares in the capital of any Holding Company of a Debtor, to release (or
instruct to release):


 


(A)                   that
Holding Company and any Subsidiary of that Holding Company from all or any part
of:


 


(1)                   its
Borrowing Liabilities;


 


(2)                   its
Guarantee Liabilities; and


 


(3)                   its Other
Liabilities;


 


(B)                  any
Transaction Security granted by any Subsidiary of that Holding Company over any
of its assets;


 


(C)                 any other
claim of an Intra-Group Lender or another Debtor over the assets of any
Subsidiary of that Holding Company; and


 


(D)                 where
that Holding Company or its Subsidiary is SPH, to instruct the Bond Security
Agent to release the Bond Only Security,


 


on behalf of the relevant
Creditors and Debtor;


 


(iv)                   disposal of liabilities on a share sale:  provided always that the disposal is in
accordance with the Security Enforcement Principles, if the asset which is
disposed of consists of shares in the capital of a Debtor or the Holding 


 


35

















 


Company
of a Debtor (a “Share Disposal”) and the Security
Agent (acting in accordance with paragraph (d) below) decides to dispose
of all or any part of:


 


(A)                   the
Liabilities; or


 


(B)                  the
Debtor Liabilities,


 


owed by that Debtor or
Holding Company or any Subsidiary of that Debtor or Holding Company (a “Liabilities Disposal”):


 


(C)                 (if the
Security Agent (acting in accordance with paragraph (c) below) does not
intend that any transferee of those Liabilities or Debtor Liabilities (the “Transferee”) will be treated as a Senior
Creditor or a Secured Party for the purposes of this Agreement), to execute and
deliver or enter into any agreement to dispose of all (and not part only) of
those Liabilities owed to the Senior Creditors or Debtor Liabilities provided that notwithstanding any other
provision of any Debt Document the Transferee shall not be treated as a Senior
Creditor or a Secured Party for the purposes of this Agreement;


 


(D)                 (if the
Security Agent (acting in accordance with paragraph (c) below) does intend
that any Transferee will be treated as a Senior Creditor or a Secured Party for
the purposes of this Agreement), to execute and deliver or enter into any
agreement to dispose of:


 


(1)                   all (and not
part only) of the Liabilities owed to the Senior Creditors; and


 


(2)                   all or
part of any other Liabilities and the Debtor Liabilities,


 


on behalf of, in each
case, the relevant Creditors and Debtors; and


 


(E)                  in all
cases, where the enforcement giving rise to a Liabilities Disposal is in
respect of an enforcement by way of a Share Disposal of the shares in the
capital of SPH, the Security Agent shall be required, prior to such Liabilities
Disposal, to enforce the Security over the shares in the capital of  Sappi Manufacturing (Pty) Limited, South
Africa;


 


(v)                     transfer of obligations in respect of liabilities on a share
sale: 
if the asset which is disposed of consists of shares in the capital of a
Debtor or the Holding Company of a Debtor (the “Disposed Entity”) and the Security Agent (acting in accordance
with paragraph (d) below) decides to transfer to another Debtor (the “Receiving Entity”) all or any part of the
Disposed Entity’s obligations or any obligations of any Subsidiary of that
Disposed Entity in respect of:


 


(A)                   the
Intra-Group Liabilities; or


 


36

















 


(B)                  the
Debtor Liabilities,


 


to execute and deliver or
enter into any agreement to:


 


(C)                 agree to
the transfer of all or part of the obligations in respect of those Intra-Group
Liabilities or Debtor Liabilities on behalf of the relevant Intra-Group Lenders
and Debtors to which those obligations are owed and on behalf of the Debtors
which owe those obligations; and


 


(D)                 to accept
the transfer of all or part of the obligations in respect of those Intra-Group
Liabilities or Debtor Liabilities on behalf of the Receiving Entity or
Receiving Entities to which the obligations in respect of those Intra-Group
Liabilities or Debtor Liabilities are to be transferred.


 


(b)                                     The
net proceeds of each Distressed Disposal (and the net proceeds of any disposal
of Liabilities or Debtor Liabilities pursuant to paragraph (a)(iv) above)
shall be paid to the Security Agent for application in accordance with
Clause 14 (Application of Proceeds)
as if those proceeds were the proceeds of an enforcement of the Transaction
Security and, to the extent that any disposal of Liabilities or Debtor
Liabilities has occurred pursuant to paragraph (a)(iv)(D) above), as if
that disposal of Liabilities or Debtor Liabilities had not occurred.


 


(c)                                      In
the case of a Distressed Disposal (or a disposal of Liabilities pursuant to
paragraph (a)(iv)(D) above) effected by or at the request of the Security
Agent (acting in accordance with paragraph (d) below), the Security Agent
shall take reasonable care to obtain a fair market price in the prevailing
market conditions (though the Security Agent shall have no obligation to
postpone any such Distressed Disposal or disposal of Liabilities in order to
achieve a higher price).


 


(d)                                     For
the purposes of paragraphs (a)(ii), (a)(iii), (a)(iv), (a)(v) and (c) above,
the Security Agent shall act:


 


(i)                        if
the relevant Distressed Disposal is being effected by way of enforcement of the
Transaction Security, in accordance with Clause 12.4 (Manner of enforcement); and


 


(ii)                     in any
other case on the instructions of the Majority Senior Creditors.


 


13.3                  Creditors’
and Debtors’ actions


 


Each Creditor other than
the Bond Trustee and, until the Senior Discharge Date, each Debtor will:


 


(a)                                     do
all things (or direct its Agent to do all things) that the Security Agent
requests in order to give effect to this Clause 13 (Proceeds of Disposals) (which shall
include, without limitation, the execution of any assignments, transfers,
releases or other documents that the Security Agent may consider to be
necessary to give effect to the releases or disposals contemplated by this
Clause 13 (Proceeds of Disposals)); and


 


37














 


(b)                                     if
the Security Agent is not entitled to take any of the actions contemplated by
this Clause 14 (Proceeds of Disposals)
or if the Security Agent requests that any Creditor (or Agent if so directed by
its Creditors) or Debtor take any such action, take that action itself in
accordance with the instructions of the Security Agent,


 


provided
that the proceeds of those disposals are
applied in accordance with Clause 13.1 (Non-Distressed
Disposals) or Clause 13.2 (Distressed
Disposals) as the case may be.


 


13.4                  Flip-Up
of Liabilities on a Distressed Disposal


 


In the event of any
release of the Issuer or a Debtor from its Borrowing Liabilities, Guarantee
Liabilities or Other Liabilities in accordance with Clause 13.2 (Distressed Disposals), the Flip-Up Entity (as defined below)
agrees to (i) to the extent it is not already a Debtor, accede as an
additional Debtor under this Agreement and as an obligor under the relevant
Finance Documents, and (ii) assume all such Borrowing Liabilities,
Guarantee Liabilities and Other Liabilities immediately upon such release
taking effect and agrees to indemnify the Secured Parties on demand for any
losses suffered by the same as a result of the operation of this Clause 13.4. “Flip-Up Entity” shall mean (i) in the circumstances where
the shares in the capital of SPH are being disposed of, Sappi Holding GmbH, and
(ii) in the circumstances where the shares in the capital of a Subsidiary
of SPH are being disposed of, SPH.


 


14.                        APPLICATION OF PROCEEDS


 


14.1                  Order
of application


 


Subject to Clause 14.2 (Prospective liabilities), all amounts from
time to time received or recovered by the Security Agent in connection with the
realisation or enforcement of all or any part of the Transaction Security (for
the purposes of this Clause 14, the “Recoveries”)
shall be held by the Security Agent on trust to apply them at any time as the
Security Agent (in its discretion) sees fit, to the extent permitted by
applicable law (and subject to the provisions of this Clause 14 (Application of Proceeds)), in the
following order of priority:


 


(a)                                     in
discharging any sums owing to the Security Agent, any Receiver or any Delegate
and the Bond Trustee;


 


(b)                                     in
payment of all costs and expenses incurred by the Agents (other than the Bond
Trustee) or Senior Creditors in connection with any realisation or enforcement
of the Transaction Security taken in accordance with the terms of this
Agreement or any action taken at the request of the Security Agent under
Clause 9.5 (Creditors’ actions);


 


(c)                                      in
payment to:


 


(i)                        the
RCF Agent on its own behalf and on behalf of the RCF Finance Parties;


 


(ii)                     the Hedge
Counterparties;


 


(iii)                  the OeKB
Agent on its own behalf and on behalf of the OeKB Lenders;


 


38

















 


(iv)                   the Bond
Trustee on behalf of the Bondholders; and


 


(v)                      each
Pari Passu Agent on its own behalf and on behalf of the relevant Pari Passu
Lenders,


 


for application towards
the discharge of:


 


(A)                   the Agent
Liabilities in respect of the RCF Agent and the RCF Finance Parties’
Liabilities (in accordance with the terms of the RCF Finance Documents);


 


(B)                  the
Hedging Liabilities (on a pro rata
basis between the Hedging Liabilities of each Hedge Counterparty);


 


(C)                 the Agent
Liabilities in respect of the OeKB Agent and the OeKB Liabilities (in
accordance with the terms of the OeKB Facilities);


 


(D)                 the Bond
Liabilities (in accordance with the Bond Indenture);


 


(E)                  the Pari
Passu Debt (in accordance with the terms of the relevant Pari Passu Document);


 


on
a pro rata basis between
paragraph (A) above, paragraph (B) above, paragraph (C) above,
paragraph (D) above, paragraph (E) above and paragraph (F) above;


 


(d)                                     if
none of the Debtors is under any further actual or contingent liability under
any RCF Finance Document, OeKB Finance Document, Bonds Finance Document,
Hedging Agreement or Pari Passu Document, in payment to any person to whom the
Security Agent is obliged to pay in priority to any Debtor; and


 


(e)                                     the
balance, if any, in payment to the relevant Debtor.


 


14.2                  Prospective
liabilities


 


Following a Distress
Event, the Security Agent may, in its discretion, hold any amount of the
Recoveries in an interest bearing suspense or impersonal account(s) in the
name of the Security Agent with one of the RCF Finance Parties (or itself) and
for so long as the Security Agent shall think fit (the interest being credited
to the relevant account) for later application under Clause 14.1 (Order of Application) in respect of:


 


(a)                                     any
sum to the Security Agent, any Receiver or any Delegate; and


 


(b)                                     any
part of the Liabilities or the Agent Liabilities,


 


that the Security Agent
reasonably considers, in each case, might become due or owing at any time in
the future.


 


14.3                  Investment
of proceeds


 


Prior to the application
of the proceeds of the Security Property in accordance with Clause 14.1 (Order of Application) the Security Agent may, in its
discretion, hold all or part of those proceeds in an interest bearing suspense
or impersonal account(s) in the 


 


39

















 


name of the Security Agent
with such financial institution (including itself) and for so long as the
Security Agent shall think fit (the interest being credited to the relevant
account) pending the application from time to time of those monies in the
Security Agent’s discretion in accordance with the provisions of this
Clause 14.


 


14.4                  Currency
Conversion


 


(a)                                     For
the purpose of, or pending the discharge of, any of the Secured Obligations the
Security Agent may convert any moneys received or recovered by the Security
Agent from one currency to another, at the Security Agent’s Spot Rate of
Exchange.


 


(b)                                     The
obligations of any Debtor to pay in the due currency shall only be satisfied to
the extent of the amount of the due currency purchased after deducting the
costs of conversion.


 


14.5                  Permitted
Deductions


 


The Security Agent shall
be entitled, in its discretion, (a) to set aside by way of reserve amounts
required to meet and (b) to make and pay, any deductions and withholdings
(on account of taxes or otherwise) which it is or may be required by any
applicable law to make from any distribution or payment made by it under this
Agreement, and to pay all Taxes which may be assessed against it in respect of
any of the Charged Property, or as a consequence of performing its duties, or
by virtue of its capacity as Security Agent under any of the Debt Documents or
otherwise (other than in connection with its remuneration for performing its
duties under this Agreement).


 


14.6                  Good
Discharge


 


Any payment to be made in
respect of the Secured Obligations by the Security Agent:


 


(a)                                     may
be made to the RCF Agent on behalf of the RCF Finance Parties;


 


(b)                                     may
be made to the OeKB Agent on behalf of the OeKB Lenders;


 


(c)                                      may
be made to the Bond Trustee on behalf of the Bondholders;


 


(d)                                     shall
be made directly to the Hedge Counterparties; and


 


(e)                                     may
be made to the relevant Pari Passu Agent on behalf of its Creditors,


 


and any payment made in
that way shall be a good discharge, to the extent of that payment, by the Security
Agent.


 


14.7                  Calculation
of Amounts


 


For the purpose of
calculating any person’s share of any sum payable to or by it, the Security
Agent shall be entitled to:


 


(a)                                     notionally
convert the Liabilities owed to any person into a common base currency (decided
in its discretion by the Security Agent), that notional conversion to be made
at the spot rate at which the Security Agent is able to purchase the notional
base currency with the actual currency of the Liabilities owed to that person
at the time at which that calculation is to be made; and


 


40

















 


(b)                                     assume
that all moneys received or recovered as a result of the enforcement or
realisation of the Security Property are applied in discharge of the Liabilities
in accordance with the terms of the Debt Documents under which those
Liabilities have arisen.


 


15.                         EQUALISATION


 


15.1                  Equalisation
Definitions


 


For the purposes of this
Clause 15:


 


“Enforcement Date” means the first date (if
any) on which a Senior Creditor takes enforcement action of the type described
in paragraphs (a)(i), (a)(iii), (a)(iv) or (b) of the definition
of “Enforcement Action” in
accordance with the terms of this Agreement.


 


15.2                  Implementation
of equalisation


 


The provisions of this
Clause 15 (Equalisation) shall be applied at
such time or times after the Enforcement Date as the Security Agent shall
consider appropriate.  Without prejudice
to the generality of the preceding sentence, if the provisions of this Clause 15
have been applied before all the Liabilities have matured and/or been finally
quantified, the Security Agent may elect to re-apply those provisions on the
basis of revised exposures and the Senior Creditors shall make appropriate
adjustment payments amongst themselves.


 


15.3                  Equalisation


 


If, for any reason, any
Senior Liabilities remain unpaid after the Enforcement Date and after the
application of Recoveries, as defined in, and in accordance with Clause 14.1 (Order of application) and the resulting losses are not borne
by the Senior Creditors in the proportions which their respective exposures at
the Enforcement Date bore to the aggregate exposures of all the Senior
Creditors at the Enforcement Date, the Senior Creditors will make such
payments, from such Recoveries (as defined in Clause 14.1 (Order of
application)) actually applied, amongst themselves as the Security
Agent shall require to put the Senior Creditors in such a position that (after
taking into account such payments) those losses are borne in those proportions.


 


15.4                  Turnover
of enforcement proceeds


 


If:


 


(a)                                     the
Security Agent, the OeKB Agent, the Bond Trustee or the RCF Agent is not
entitled, for reasons of applicable law, to pay amounts received pursuant to
the making of a demand under any guarantee, indemnity or other assurance
against loss or the enforcement of the Transaction Security to the Senior
Creditors but is entitled to distribute those amounts to Creditors (such
Creditors, the “Receiving Creditors”)
who, in accordance with the terms of this Agreement, are subordinated in right
and priority of payment to the Senior Creditors; and


 


(b)                                     the
Senior Discharge Date has not yet occurred (nor would occur after taking into
account such payments),


 


41

















 


then the Receiving
Creditors shall make such payments to the Senior Creditors as the Security
Agent shall require to place the Senior Creditors in the position they would
have been in had such amounts been available for application against the Senior
Liabilities.


 


15.5                  Notification
of Exposure


 


Before each occasion on
which it intends to implement the provisions of this Clause 15 (Equilisation), the Security Agent shall send notice to each
Hedge Counterparty, the OeKB Agent (on behalf of the OeKB Lenders), the Bond
Trustee (on behalf of the Bondholders) and the RCF Agent (on behalf of the RCF
Finance Parties) requesting that it notify it of, respectively, its exposure
and that of each Senior Creditor (if any).


 


15.6                  Default
in payment


 


If a Creditor fails to
make a payment due from it under this Clause 15 (Equilisation),
the Security Agent shall be entitled (but not obliged) to take action on behalf
of the Senior Creditor(s) to whom such payment was to be redistributed
(subject to being indemnified to its satisfaction by such Senior Creditor(s) in
respect of costs) but shall have no liability or obligation towards such Senior
Creditor(s), any other Senior Creditor or Creditor as regards such default in
payment and any loss suffered as a result of such default shall lie where it
falls.


 


16.                         THE SECURITY AGENT


 


16.1                  Trust


 


(a)                                     Each other Secured
Party hereby appoints the Security Agent as security trustee under and in
connection with this Agreement and the Security Documents in relation to any
security interest which is expressed to be governed by any law other than
German, Belgian, Dutch and Austrian law, or any other law from time to time
designated by the Security Agent and a Debtor.


 


(b)                                     Except
as provided in paragraph (a) above and, without limiting or affecting
Clause 16.2 (Parallel Debt (Covenant to pay the Security
Agent), each other Secured Party appoints the Security Agent to act
as security agent under and in connection with the relevant Security Documents
and this Agreement.


 


(c)                                      Each
other Secured Party agrees that the Security Agent shall have only those
duties, obligations and responsibilities expressly specified in this Agreement
or in the Security Documents to which the Security Agent is expressed to be a
party (and no others shall be implied). 
The duties of the Security Agent under the Debt Documents are solely
mechanical and administrative in nature.


 


16.2                  Parallel
Debt (Covenant to pay the Security Agent)


 


(a)                                     Each
of the Debtors and each Secured Party (other than the Security Agent) hereby
irrevocably and unconditionally agrees and undertakes with the Security Agent
(and, where applicable, by way of an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis)) that each of the Debtors
shall pay to the Security Agent sums equal to, and in the currency of, any sums
owing by it to a Secured Party (other than the Security Agent) under any
Finance Documents (the “Principal Obligations”)
as and when the same fall due for payment under the relevant Finance Document
(together with the obligations described in paragraph (e) below, the “Parallel Debt Obligations”) provided that prior to 


 


42

















 


the
2012/2032 Final Notes Redemption, the Parallel Debt Obligations in respect of
Security over Principal Property shall be subject to the limitations in Clause
18 (Limitation on Principal Property over Security).


 


(b)                                     Each
of the Debtors and each Secured Party (other than the Security Agent)
acknowledges that the right of the Security Agent to demand payment of the
Parallel Debt Obligations shall be independent and several from the rights of
the other Secured Parties to demand payment of the Principal Obligations provided that the payment by a Debtor of its Parallel Debt
Obligations to the Security Agent in accordance with this Clause 16.2 shall
also discharge (in the amount of the relevant payment) the corresponding
Principal Obligations and vice versa the
payment by a Debtor of its Principal Obligations in accordance with the
provisions of the Finance Documents shall also discharge (in the amount of the
relevant payment) the corresponding Parallel Debt Obligations but further provided that no Principal Obligation shall be
discharged by a discharge of the Parallel Debt Obligations if such discharge of
the Parallel Debt Obligations is effected by virtue of any set-off,
counterclaim or similar defence invoked by a Debtor vis-à-vis
the Security Agent.


 


(c)                                      Despite
the foregoing, any payment under the Finance Documents shall be made to the
Security Agent unless expressly stated otherwise in any Finance Document or
unless the Security Agent directs such payment to be made to the Security
Agent.


 


(d)                                     Without
limiting or affecting the Security Agent’s rights against any Debtor (whether
under this Clause 16.2 or under any other provision of the Finance Documents),
the Security Agent agrees with each other Secured Party (on a several and
divided basis) that it will not exercise its rights under the Parallel Debt
Obligations in respect of the Principal Obligations owing to a Secured Party
except with the consent of the relevant Secured Party.  However, for the avoidance of doubt, nothing
in the previous sentence shall in any way limit the Security Agent’s right to
act in the protection or preservation of rights under any Transaction Security
Document or to enforce any Transaction Security as contemplated by this
Agreement, the relevant Transaction Security Document or any other Finance
Document (or to do any act reasonably incidental to the foregoing).


 


(e)                                     The
Security Agent, the Debtors and each of the other Secured Parties agree that
the Security Agent shall be the joint and several creditor (Gesamtgläubiger) (together with the relevant other Secured
Party) of each and every obligation of the Debtors towards that other Secured
Party under the Finance Documents, and that accordingly the Security Agent will
have its own and independent right to demand performance by the Debtors of
those obligations (Gesamtgläubigerschaft)
in full.


 


16.3                  German security


 


(a)                                     Each
of the Secured Parties (other than the Security Agent) hereby appoints the
Security Agent as trustee (Treuhänder)
and administrator for the purpose of accepting and administering the German
Security Documents for and on behalf 


 


43

















 


of
the other Secured Parties. The Security Agent shall hold and administer any
German Security Documents as trustee (treuhänderisch)
for the benefit of the Secured Parties.


 


(b)                                     Each
Secured Party hereby authorises the Security Agent (whether or not by or
through employees or agents)


 


(i)                        to
exercise such rights, remedies, powers and discretions as are specifically
delegated to or conferred upon the Security Agent under the German Security
Documents together with such powers and discretions as are reasonably
incidental thereto;


 


(ii)                     to take
such action on its behalf as may from time to time be authorised under or in
connection with the German Security Documents.


 


(c)                                      Each
of the Secured Parties hereby relieves the Security Agent from the restrictions
of self-dealing pursuant to Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) or any other
applicable restrictions of self-dealing pursuant to any other applicable law,
in each case to the extent legally possible, to perform its duties and
obligations as Security Agent hereunder. The Security Agent shall have the
authority to sub-delegate the power granted hereunder in accordance with this
Agreement and to grant an exemption from the restrictions imposed by such code
provision to any sub-delegate.


 


16.4                  Swiss
Security


 


In relation
to the Security Documents governed by the laws of Switzerland (the “Swiss Security Documents”):


 


(a)                                     the
Security Agent holds


 


(i)                        any Security constituted by such Swiss
Security Document (but only in relation to an assignment or any other
non-accessory (nicht akzessorische) Security),


 


(ii)                     the benefit of this paragraph, and


 


(iii)                  any
proceeds of such Security,


 


as fiduciary (treuhänderisch) in its own name but for the account of all
the Secured Parties which have the benefit of such Security in accordance with
this Agreement and, if relevant, the respective Swiss Security Document;


 


(b)                                     each
present and future Secured Party hereby authorises the Security Agent:


 


(i)                        acting for itself and for the account of
such Secured Party to accept as its representative (direkter
Stellvertreter) any Swiss law pledge or any other Swiss law
accessory (akzessorische) Security made or
expressed to be made to such Secured Party in relation to the Finance
Documents, to hold and, if necessary, enforce any such Security on behalf of
each Secured Party which has the benefit of such Security;


 


44

















 


(ii)                     to agree as its representative (direkter Stellvertreter) to amendments and alterations to
any Swiss Security Document which creates a pledge or any other Swiss law
accessory (akzessorische) Security;


 


(iii)                  to effect as its representative (direkter Stellvertreter) any release of a Security created
under a Swiss law Security Document in accordance with this Agreement below;
and


 


(iv)                   to exercise as its representative (direkter Stellvertreter) such other rights granted to the
Security Agent hereunder;


 


(c)                                      each
present and future Secured Party hereby authorises the Security Agent, when
acting in its capacity as creditor of the Parallel Debt Obligations pursuant to
Clause 16.2 (Parallel Debt (Covenant to pay the Security
Agent)), to hold:


 


(i)                        any
Swiss law pledge or any other Swiss law accessory (akzessorische)
Security;


 


(ii)                     any
proceeds of such Security; and


 


(iii)                  the
benefit of this paragraph and of the Parallel Debt Obligations,


 


as creditor in its own
right but for the benefit of such Secured Parties in accordance with this
Agreement.


 


16.5                  No
independent power


 


The Secured Parties shall
not have any independent power to enforce, or have recourse to, any of the
Transaction Security or to exercise any rights or powers arising under the
Security Documents except through the Security Agent.


 


16.6                  Instructions
to Security Agent and exercise of discretion


 


(a)                                     Subject
to paragraphs (d) and (e) below, the Security Agent shall act in
accordance with any instructions given to it by the Enforcing Senior Creditors
and/or the Majority Senior Creditors (as the case may be) or, if so instructed
by the Enforcing Senior Creditors and/or the Majority Senior Creditors (as the
case may be), refrain from exercising any right, power, authority or discretion
vested in it as Security Agent and shall be entitled to assume that (i) any
instructions received by it from the Agents, the Creditors or a group of
Creditors are duly given in accordance with the terms of the Debt Documents and
(ii) unless it has received actual notice of revocation, that those
instructions or directions have not been revoked.


 


(b)                                     The
Security Agent shall be entitled to request instructions, or clarification of
any direction, from the Enforcing Senior Creditors and/or the Majority Senior
Creditors (as the case may be) as to whether, and in what manner, it should
exercise or refrain from exercising any rights, powers, authorities and
discretions and the Security Agent may refrain from acting unless and until
those instructions or clarification are received by it.


 


45

















 


(c)                                      Save
as provided in Clause 12 (Enforcement
of Transaction Security), any instructions given to the Security
Agent by the Majority Senior Creditors shall override any conflicting
instructions given by any other Parties.


 


(d)                                     Paragraph
(a) above shall not apply:


 


(i)                        where
a contrary indication appears in this Agreement;


 


(ii)                     where
this Agreement requires the Security Agent to act in a specified manner or to
take a specified action;


 


(iii)                  in
respect of any provision which protects the Security Agent’s own position in
its personal capacity as opposed to its role of Security Agent for the Secured
Parties including, without limitation, the provisions set out in Clauses 16.8 (Security Agent’s discretions) to Clause
16.24 (Disapplication);


 


(iv)                   in
respect of the exercise of the Security Agent’s discretion to exercise a right,
power or authority under any of:


 


(A)                   Clause
13.1 (Non-Distressed Disposals);


 


(B)                  Clause
14.1 (Order of application);


 


(C)                 Clause
14.2 (Prospective liabilities);
and


 


(D)                 Clause
14.5 (Permitted Deductions).


 


(e)                                     If
giving effect to instructions given by the Majority Senior Creditors would (in
the Security Agent’s opinion) have an effect equivalent to any amendment or
waiver which is subject to Clause 27 (Consents,
Amendments and Override) (an “Intercreditor Amendment”),
the Security Agent shall not act in accordance with those instructions unless
consent to it so acting is obtained from each Party (other than the Security
Agent) whose consent would have been required in respect of that Intercreditor
Amendment.


 


(f)                                         In
exercising any discretion to exercise a right, power or authority under this
Agreement where either:


 


(i)                        it
has not received any instructions from the Enforcing Senior Creditors or the
Majority Senior Creditors (as to the case may be) as to the exercise of that
discretion; or


 


(ii)                     the
exercise of that discretion is subject to paragraph (d)(iv) above,


 


the Security Agent shall
do so having regard to the interests of all the Secured Parties.


 


16.7                  Security
Agent’s Actions


 


Without prejudice to the
provisions of Clause 12 (Enforcement of
Transaction Security) and  Clause 16.6
(Instructions to Security Agent and exercise
of discretion), the Security Agent may (but shall not be obliged
to), in the absence of any instructions to the 


 


46

















 


contrary, take such action
in the exercise of any of its powers and duties under the Debt Documents as it
considers in its discretion to be appropriate. 
The Security Agent shall have all the rights, privileges and immunities
which gratuitous trustees have or may have in England, even though it is
entitled to remuneration.


 


16.8                  Security
Agent’s discretions


 


The Security Agent may:


 


(a)                                     assume
(unless it has received actual notice to the contrary from a Hedge
Counterparty, the Bond Trustee, the OeKB Agent or the RCF Agent) that (i) no
Default has occurred and no Debtor is in breach of or default under its
obligations under any of the Debt Documents and (ii) any right, power,
authority or discretion vested by any Debt Document in any person has not been
exercised;


 


(b)                                     if
it receives any instructions or directions under Clause 12 (Enforcement of Transaction Security) to
take any action in relation to the Transaction Security, assume that all
applicable conditions under the Debt Documents for taking that action have been
satisfied;


 


(c)                                      engage,
pay for and rely on the advice or services of any legal advisers, accountants,
tax advisers, surveyors or other experts (whether obtained by the Security
Agent or by any other Secured Party) whose advice or services may at any time
seem necessary, expedient or desirable;


 


(d)                                     rely
upon any communication or document believed by it to be genuine and, as to any
matters of fact which might reasonably be expected to be within the knowledge
of a Secured Party, any Creditor or a Debtor, upon a certificate signed by or
on behalf of that person;


 


(e)                                     refrain
from acting in accordance with the instructions of any Party (including
bringing any legal action or proceeding arising out of or in connection with
the Debt Documents) until it has received any indemnification and/or security
that it may in its discretion require (whether by way of payment in advance or
otherwise) for all costs, losses and liabilities which it may incur in so
acting;


 


(f)                                         disclose
to any other Party any information it reasonably believes it has received as
Security Agent; and


 


(g)                                     hold
title deeds and other documents, including, without limitation, the Mortgagee
Offer and the Mortgage Deed, relating to the Security Property in such manner
as it sees fit (except in the case of the Mortgage Offer and the Mortgage Deed,
including allowing any Debtor to retain them).


 


16.9                  Security
Agent’s obligations


 


The Security Agent shall
promptly:


 


(a)                                     copy
to (i) the RCF Agent, the OeKB Agent, the Bond Trustee (ii) each
Hedge Counterparty and (iii) each Pari Passu Agent the contents of any
notice or document received by it from any Debtor under any Debt Document; 


 


47














 


(b)                                     forward
to a Party the original or a copy of any document which is delivered to the
Security Agent for that Party by any other Party provided that, except where a Debt Document expressly provides
otherwise, the Security Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another Party;


 


(c)                                      inform
(i) the RCF Agent, the OeKB Agent, the Bond Trustee (ii) each Hedge
Counterparty and (iii) each Pari Passu Agent of the occurrence of any
Default or any default by a Debtor in the due performance of or compliance with
its obligations under any Debt Document of which the Security Agent has
received notice from any other party to this Agreement; and


 


(d)                                     to
the extent that a Party (other than the Security Agent) is required to
calculate a Common Currency Amount, and upon a request by that Party, notify
that Party of the relevant Security Agent’s Spot Rate of Exchange.


 


16.10           Excluded
obligations


 


Notwithstanding anything
to the contrary expressed or implied in the Debt Documents, the Security Agent
shall not:


 


(a)                                     be
bound to enquire as to (i) whether or not any Default has occurred or (ii) the
performance, default or any breach by a Debtor of its obligations under any of
the Debt Documents;


 


(b)                                     be
bound to account to any other Party for any sum or the profit element of any
sum received by it for its own account;


 


(c)                                      be
bound to disclose to any other person (including but not limited to any Secured
Party) (i) any confidential information or (ii) any other information
if disclosure would, or might in its reasonable opinion, constitute a breach of
any law or be a breach of fiduciary duty;


 


(d)                                     have
any duty to ensure:


 


(i)                        that
any payment or other financial benefit in respect of any of the Security
Property or any Liabilities are duly and punctually paid, received or
collected; or


 


(ii)                     the
taking up of any (or any offer of any) stocks, shares, rights, moneys or other
property accruing or offered at any time by way of interest, dividend,
redemption, bonus, rights, preference, option, warrant or otherwise in respect
of any of the Security Property or any Liabilities; or


 


(e)                                     have
or be deemed to have any relationship of trust or agency with, any Debtor.


 


16.11           Exclusion
of liability


 


None of the Security
Agent, any Receiver or any Delegate shall accept responsibility or be liable
for:


 


(a)                                     the
adequacy, accuracy or completeness of any information (whether oral or written)
supplied by the Security Agent or any other person in or in connection 


 


48

















 


with
any Debt Document or the transactions contemplated in the Debt Documents, or
any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Debt Document;


 


(b)                                     the
legality, validity, effectiveness, adequacy or enforceability of any Debt
Document, the Security Property or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Debt Document or the Security Property;


 


(c)                                      any
losses to any person or any liability arising as a result of taking or
refraining from taking any action in relation to any of the Debt Documents, the
Security Property or otherwise, whether in accordance with an instruction from
the Majority Senior Creditors, Enforcing Senior Creditors, the Bond Trustee,
the OeKB Agent, the RCF Agent, the Hedge Counterparties, any Pari Passu Agent
or otherwise unless directly caused by its gross negligence or wilful misconduct;


 


(d)                                     the
exercise of, or the failure to exercise, any judgment, discretion or power
given to it by or in connection with any of the Debt Documents, the Security
Property or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with, the Debt Documents or
the Security Property; or


 


(e)                                     any
shortfall which arises on the enforcement or realisation of the Security
Property.


 


16.12           No
proceedings


 


No Party (other than the
Security Agent, that Receiver or that Delegate) may take any proceedings
against any officer, employee or agent of the Security Agent, a Receiver or a
Delegate in respect of any claim it might have against the Security Agent, a
Receiver or a Delegate or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Debt Document or any Security
Property and any officer, employee or agent of the Security Agent, a Receiver
or a Delegate may rely on this Clause 16.12 (No
proceedings), subject to Clause 1.3 (Third Party
Rights) and the provisions of the Third Parties Rights Act.


 


16.13           Own
responsibility


 


Without affecting the
responsibility of any Debtor for information supplied by it or on its behalf in
connection with any Debt Document, each Secured Party confirms to the Security
Agent that it has been, and will continue to be, solely responsible for making
its own independent appraisal and investigation of all risks arising under or
in connection with any Debt Document including but not limited to:


 


(a)                                     the
financial condition, status and nature of each member of the Group;


 


(b)                                     the
legality, validity, effectiveness, adequacy and enforceability of any Debt
Document, the Security Property and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Debt Document or the Security Property;


 


49

















 


(c)                                      whether
that Secured Party has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection with
any Debt Document, the Security Property, the transactions contemplated by the
Debt Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Debt
Document or the Security Property;


 


(d)                                     the
adequacy, accuracy and/or completeness of any information provided by the
Security Agent or by any other person under or in connection with any Debt
Document, the transactions contemplated by any Debt Document or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Debt Document; and


 


(e)                                     the
right or title of any person in or to, or the value or sufficiency of any part
of the Charged Property, the priority of any of the Transaction Security or the
existence of any Security affecting the Charged Property,


 


and each Secured Party
warrants to the Security Agent that it has not relied on and will not at any
time rely on the Security Agent in respect of any of these matters.


 


16.14           No
responsibility to perfect Transaction Security


 


The Security Agent shall
not be liable for any failure to:


 


(a)                                     require
the deposit with it of any deed or document certifying, representing or
constituting the title of any Debtor to any of the Charged Property;


 


(b)                                     obtain
any licence, consent or other authority for the execution, delivery, legality,
validity, enforceability or admissibility in evidence of any of the Debt
Documents or the Transaction Security;


 


(c)                                      register,
file or record or otherwise protect any of the Transaction Security (or the
priority of any of the Transaction Security) under any applicable laws in any
jurisdiction or to give notice to any person of the execution of any of the
Debt Documents or of the Transaction Security;


 


(d)                                     take,
or to require any of the Debtors to take, any steps to perfect its title to any
of the Charged Property or to render the Transaction Security effective or to
secure the creation of any ancillary Security under the laws of any
jurisdiction; or


 


(e)                                     require
any further assurances in relation to any of the Security Documents.


 


16.15           Insurance
by Security Agent


 


(a)                                     The
Security Agent shall not be under any obligation to insure any of the Charged
Property, to require any other person to maintain any insurance or to verify
any obligation to arrange or maintain insurance contained in the Debt
Documents.  The Security Agent shall not
be responsible for any loss which may be suffered by any person as a result of
the lack of or inadequacy of any such insurance.


 


50

















 


(b)                                     Where
the Security Agent is named on any insurance policy as an insured party, it
shall not be responsible for any loss which may be suffered by reason of,
directly or indirectly, its failure to notify the insurers of any material fact
relating to the risk assumed by such insurers or any other information of any
kind, unless an Agent shall have requested it to do so in writing and the
Security Agent shall have failed to do so within fourteen days after receipt of
that request.


 


16.16           Custodians
and nominees


 


The Security Agent may
appoint and pay any person to act as a custodian or nominee on any terms in
relation to any assets of the trust as the Security Agent may determine,
including for the purpose of depositing with a custodian this Agreement or any
document relating to the trust created under this Agreement and the Security
Agent shall not be responsible for any loss, liability, expense, demand, cost,
claim or proceedings incurred by reason of the misconduct, omission or default
on the part of any person appointed by it under this Agreement or be bound to
supervise the proceedings or acts of any person.


 


16.17           Acceptance
of title


 


The Security Agent shall
be entitled to accept without enquiry, and shall not be obliged to investigate,
any right and title that any of the Debtors may have to any of the Charged
Property and shall not be liable for or bound to require any Debtor to remedy
any defect in its right or title.


 


16.18           Refrain
from illegality


 


Notwithstanding anything
to the contrary expressed or implied in the Debt Documents, the Security Agent
may refrain from doing anything which in its opinion will or may be contrary to
any relevant law, directive or regulation of any jurisdiction and the Security
Agent may do anything which is, in its opinion, necessary to comply with any
such law, directive or regulation.


 


16.19           Business
with the Debtors


 


The Security Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking or other business with any of the Debtors.


 


16.20           Winding
up of trust


 


If the Security Agent,
with the written approval of the Bond Trustee, the OeKB Agent, the RCF Agent,
each Hedge Counterparty and each Pari Passu Agent, determines that (a) all
of the Secured Obligations and all other obligations secured by the Security
Documents have been fully and finally discharged and (b) none of the
Secured Parties is under any commitment, obligation or liability (actual or
contingent) to make advances or provide other financial accommodation to any
Debtor pursuant to the Debt Documents:


 


(a)                                     the
trusts set out in this Agreement shall be wound up and the Security Agent shall
release, without recourse or warranty, all of the Transaction Security and the
rights of the Security Agent under each of the Security Documents; and


 


(b)                                     any
Retiring Security Agent shall release, without recourse or warranty, all of its
rights under each of the Security Documents.


 


51

















 


16.21           Perpetuity
period


 


The perpetuity period
under the rule against perpetuities, if applicable to this Agreement,
shall be the period of eighty years from the date of this Agreement.


 


16.22           Powers
supplemental


 


The rights, powers and
discretions conferred upon the Security Agent by this Agreement shall be
supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition
to any which may be vested in the Security Agent by general law or otherwise.


 


16.23           Trustee
division separate


 


(a)                                     In
acting as trustee for the Secured Parties, the Security Agent shall be regarded
as acting through its Syndicated Loans Agency department which shall be treated
as a separate entity from any of its other divisions or departments.


 


(b)                                     If
information is received by another division or department of the Security
Agent, it may be treated as confidential to that division or department and the
Security Agent shall not be deemed to have notice of it.


 


16.24           Disapplication


 


Section 1 of the
Trustee Act 2000 shall not apply to the duties of the Security Agent in
relation to the trusts constituted by this Agreement save to the extent
required by law.  Where there are any
inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the
provisions of this Agreement, the provisions of this Agreement shall, to the
extent allowed by law, prevail and, in the case of any inconsistency with the
Trustee Act 2000, the provisions of this Agreement shall constitute a
restriction or exclusion for the purposes of that Act.


 


16.25           Intra-Group
Lenders and Debtors:  Power of Attorney


 


(a)                                     Each
Intra-Group Lender and Debtor by way of security for its obligations under this
Agreement irrevocably appoints the Security Agent to be its attorney to do
(until the Senior Discharge Date) anything which that Intra-Group Lender or
Debtor has authorised the Security Agent or any other Party to do under this
Agreement or is itself required to do under this Agreement but has failed to do
within 10 Business Days of receiving notice requiring it to do so (and the
Security Agent may delegate that power on such terms as it sees fit).  Each Intra-Group Lender and Debtor ratifies
and confirms and agrees to ratify and confirm whatever any such attorney shall
do in the exercise or purported exercise of the power of attorney granted in
this Clause 16.25.


 


(b)                                     Each
of the Intra-Group Lenders and Debtors hereby relieves the Security Agent from
the restrictions of self-dealing pursuant to Section 181 of the German
Civil Code (Bürgerliches Gesetzbuch)
or any other applicable restrictions of self-dealing pursuant to any other
applicable law, in each case to the extent legally possible, to perform its
duties and obligations as Security Agent hereunder. The Security Agent shall
have the authority to sub-delegate the power granted hereunder in accordance
with this Agreement and to grant an exemption from the restrictions imposed by
such code provision to any sub-delegate.


 


52

















 


16.26           Security
Enforcement Principles


 


The Security Enforcement
Principles shall bind each Party.


 


16.27           No fiduciary duties


 


Nothing in this Agreement
constitutes the Security Agent (except as expressly provided in this Agreement)
as a trustee or fiduciary of any other person.


 


17.                         CHANGE OF SECURITY AGENT AND DELEGATION


 


17.1                  Resignation
of the Security Agent


 


(a)                                     The
Security Agent may resign and appoint one of its affiliates (acting through an
office in the United Kingdom) as successor by giving notice to the Company and
the Senior Creditors.


 


(b)                                     Alternatively
the Security Agent may resign by giving 30 days’ notice to the other Parties in
which case the Majority Senior Creditors may appoint a successor Security
Agent.


 


(c)                                      If
the Majority Senior Creditors have not appointed a successor Security Agent in
accordance with paragraph (b) above within 30 days after the notice
of resignation was given, the Security Agent (after consultation with the
Company, the Agents and the Hedge Counterparties) may appoint a successor
Security Agent (acting through an office in the United Kingdom).


 


(d)                                     The
retiring Security Agent (the “Retiring
Security Agent”) shall, at its own cost, make available to the
successor Security Agent such documents and records and provide such assistance
as the successor Security Agent may reasonably request for the purposes of
performing its functions as Security Agent under the Debt Documents.


 


(e)                                     The
Security Agent’s resignation notice shall only take effect upon (i) the
appointment of a successor and (ii) the transfer of all of the Security
Property (including, without limitation, all rights in respect of the Parallel
Debt Obligations) to that successor. Each Creditor and Debtor will do all
things that the Security Agent requests in order to give effect to such
transfer of Security Property (which shall include, without limitation, the
execution of any assignments, transfers, releases or other documents that the
Security Agent may consider to be necessary to give effect to the transfer).


 


(f)                                         Upon
the appointment of a successor, the Retiring Security Agent shall be discharged
from any further obligation in respect of the Debt Documents (other than its
obligations under paragraph (b) of Clause 16.20 (Winding up of trust) and under paragraph (d) above)
but shall, in respect of any act or omission by it whilst it was the Security
Agent, remain entitled to the benefit of Clauses 16 (The Security
Agent), 23.1 (Debtors’ indemnity)
and 23.3 (Senior Creditors’ indemnity).  Its
successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if that successor had
been an original Party.


 


53

















 


(g)                                     After
consultation with the Company, the Majority Senior Creditors may, by notice to
the Security Agent, require it to resign in accordance with paragraph (b) above
(or, at any time the Security Agent is an Impaired Security Agent, by giving
any shorter notice determined by the Majority Senior Creditors). In this event,
the Security Agent shall resign in accordance with paragraph (b) above
(or in accordance with such shorter notice as determined by the Majority Senior
Creditors) but the cost referred to in paragraph (d) above shall be for
the account of the Company.


 


17.2                  Delegation


 


(a)                                     Each
of the Security Agent, any Receiver and any Delegate may, at any time, delegate
by power of attorney or otherwise to any person for any period, all or any of
the rights, powers and discretions vested in it by any of the Debt Documents.


 


(b)                                     That
delegation may be made upon any terms and conditions (including the power to
sub-delegate) and subject to any restrictions that the Security Agent, that
Receiver or that Delegate (as the case may be) may, in its discretion, think
fit in the interests of the Secured Parties and it shall not be bound to
supervise, or be in any way responsible for any loss incurred by reason of any
misconduct or default on the part of any such delegate or sub-delegate.


 


17.3                  Additional
Security Agents


 


(a)                                     The
Security Agent may at any time appoint (and subsequently remove) any person to
act as a separate trustee or as a co-trustee jointly with it (i) if it
considers that appointment to be in the interests of the Secured Parties or (ii) for
the purposes of conforming to any legal requirements, restrictions or
conditions which the Security Agent deems to be relevant or (iii) for
obtaining or enforcing any judgment in any jurisdiction, and the Security Agent
shall give prior notice to the Company and each of the Agents of that
appointment.


 


(b)                                     Any
person so appointed shall have the rights, powers and discretions (not
exceeding those conferred on the Security Agent by this Agreement) and the
duties and obligations that are conferred or imposed by the instrument of
appointment.


 


(c)                                      The
remuneration that the Security Agent may pay to that person, and any costs and
expenses (together with any applicable VAT) incurred by that person in
performing its functions pursuant to that appointment shall, for the purposes
of this Agreement, be treated as costs and expenses incurred by the Security
Agent.


 


18.                         LIMITATION ON PRINCIPAL PROPERTY AS SECURITY


 


18.1                  Interpretation


 


In this Clause 18, the
following defined terms shall have the meanings set out below:


 


“Cap Amount”
means, (i) initially, €430,000,000; or (ii) the greatest amount to
which the Maximum Secured Amount shall have been increased pursuant to any re-


 


54

















 


establishment of the
Maximum Secured Amount as a result of the granting of any Transaction Security
over Principal Property pursuant to the Debt Documents;


 


“Maximum
Secured Amount” means the maximum amount of Secured Obligations that
may be secured by Transaction Security over Principal Property without
requiring any 2012/2032 Indentures to be equally and ratably secured as
provided in Section 3.11 of the 2012/2032 Indentures, taking into account
any other “Lien” to secure “Debt” and “Sale and Leaseback
Transactions” (as each such term is defined in the 2012/2032
Indentures) that have the effect of reducing the amount of Secured Obligations
that may be so secured.


 


18.2                  Limitation


 


Notwithstanding anything
to the contrary herein or in any other Debt Document, prior to the 2012/2032
Final Notes Redemption, the Secured Obligations secured by Security over
Principal Property shall not exceed the lesser of (i) the Maximum Secured
Amount, and (ii) the Cap Amount and shall secure the Secured Obligations
in the order set out in Clause 14.1 (Order of application).


 


18.3                  Representation


 


The Company represents and
warrants that, as of the date of this Agreement, the Maximum Secured Amount is
not less than the Cap Amount.


 


18.4                  Restricted
Third Party Liens and Sale and Leaseback Transactions


 


(a)                                     After
the date hereof, and except for the granting of Transaction Security pursuant
to any of the Debt Documents, the Company will not permit any member of the
Group to incur any “Lien” on any
Principal Property to secure “Debt” (a “Third Party Lien”), or to enter into any “Sale and Leaseback Transaction” on any Principal Property,
in each case that results in a reduction of the Maximum Secured Amount below
the Cap Amount as in effect (or at any time when the Maximum Secured Amount is
less than the Cap Amount as in effect) at the time of such incurrence or
entering into such transaction. The term “Third Party Lien” excludes Security (i) granted
pursuant to any Finance Documents and (ii) the creation, incurrence or
assumption of which is not prohibited by the terms of the 2012/2032
Indentures.  The terms “Lien”, “Debt” and
“Sale and Leaseback Transactions” are all as defined in the 2012/2032
Indentures.


 


(b)                                     In
respect of any Third Party Lien, the Company and SPH shall procure that as a
condition of the grant of such Third Party Lien, the relevant security document
creating each such Third Party Lien shall contain limitations which provide
that on a re-establishment of the Maximum Secured Amount pursuant to the
granting of any Transaction Security over Principal Property to an amount which
is lower than the then applicable Cap Amount (“Downward
Re-establishment”), the Security over Principal Property granted
pursuant to such Third Party Liens will be released to the extent necessary to
avoid such Downward Re-establishment or released in full in the event that the
amount by which the Maximum Secured Amount is decreased by such Downward
Re-establishment would otherwise exceed the amount of “Debt”
(as defined in the 2012/2032 Indentures) secured by such Third Party Liens;
provided that this 


 


55

















 


Clause
18.4(b) shall not apply to an amount of “Debt”
(as defined in the 2012/2032 Indentures) secured by Third Party Liens up to a
maximum aggregate amount of Euro 25,000,000 outstanding at any time.


 


18.5                  2012/2032
Notes


 


The provisions set forth
herein are intended, in part, to ensure that the Security over Principal
Property created under the Debt Documents shall not require any of the
2012/2032 Notes to be secured equally and rateably with any of the Secured
Obligations, and the Debt Documents shall be construed accordingly.


 


19.                         CHANGES TO THE PARTIES


 


19.1                  Assignments
and transfers


 


No Party may assign any of
its rights and benefits or transfer any of its rights, benefits and obligations
in respect of any Debt Documents or the Liabilities except as permitted by this
Clause 19.


 


19.2                  Change
of Senior Creditor


 


A Senior Creditor may
assign any of its rights and benefits or transfer by novation any of its
rights, benefits and obligations in respect of any Debt Documents or the
Liabilities if:


 


(a)                                     that
assignment or transfer is in accordance with the terms of the relevant Finance
Document; and


 


(b)                                     any
assignee or transferee (other than a Bondholder) has (if not already party to
this Agreement as a Senior Creditor) acceded to this Agreement as a Senior
Creditor pursuant to Clause 19.6 (Creditor/Agent
Accession Undertaking).


 


19.3                  Change
of Agent


 


No person shall become an
Agent unless at the same time, it accedes to this Agreement as an Agent
pursuant to Clause 19.6 (Creditor/Agent Accession Undertaking).


 


19.4                  Change
of Intra-Group Lender


 


Subject to Clause 8.4
(Acquisition of Intra-Group Liabilities)
and to the terms of the other Debt Documents, any Intra-Group Lender may assign
any of its rights and benefits or transfer any of its rights, benefits and
obligations in respect of the Intra-Group Liabilities to another member of the
Group if that member of the Group has (if not already party to this Agreement
as an Intra-Group Lender) acceded to this Agreement as an Intra-Group Lender,
pursuant to Clause 19.6 (Creditor/Agent
Accession Undertaking).


 


19.5                  New
Intra-Group Lender


 


If any member of the Group
(other than Sappi Limited, any Subsidiary of Sappi Limited incorporated or
organised in any country in southern Africa, any Sappi Manufacturing Group
Company or the Issuer) makes any loan to or grants any credit to or makes any
other financial arrangement having similar effect with any Debtor which is
Intra-Group Liabilities, in an amount individually equal to USD 25,000,000 or
more, the Company will procure that the person giving that loan, granting that
credit or making that other financial arrangement (if not already party to this
Agreement as an Intra-Group Lender), accedes to this Agreement as an
Intra-Group Lender pursuant to Clause 19.6 


 


56

















 


(Creditor/Agent Accession Undertaking) as
soon as reasonably practicable and, if such Intra-Group Lender is also a Debtor
(other than Sappi Limited, any Subsidiary of Sappi Limited incorporated or
organized in any country in southern Africa, any Sappi Manufacturing Group
Company or any member of the Group incorporated or organized in Switzerland),
enters into Security with respect to such loans, granting of credit or other
financial arrangements which are Intra-Group Liabilities individually equal to
or exceeding USD 25,000,000, in favour of the Security Agent as required in
accordance with any of the Finance Documents, provided
that such member of the Group shall not be required to enter into
such Security (and the Company shall not be required to procure such entering
into Security) if to do so would contravene Clause 2.4 (Security:
Debtors’ Obligations) of this Agreement.


 


19.6                  Creditor/Agent
Accession Undertaking


 


With effect from the date
of acceptance by the Security Agent and, in the case of an Affiliate of a
Senior Creditor, the relevant Agent of a Creditor/Agent Accession Undertaking
duly executed and delivered to the Security Agent by the relevant acceding
party or, if later, the date specified in that Creditor/Agent Accession
Undertaking:


 


(a)                                     any
Party ceasing entirely to be a Creditor or Agent shall be discharged from
further obligations towards the Security Agent and other Parties under this
Agreement and their respective rights against one another shall be cancelled
(except in each case for those rights which arose prior to that date); and


 


(b)                                     as
from that date, the replacement or new Creditor or Agent shall assume the same
obligations and become entitled to the same rights, as if it had been an
original Party to this Agreement in that capacity.


 


19.7                  New
Debtor


 


(a)                                     If
any member of the Group (other than the Issuer):


 


(i)                        incurs
any Liabilities (except Intra-Group Liabilities); or


 


(ii)                     gives any
security, guarantee, indemnity or other assurance against loss in respect of
any of the Senior Liabilities,


 


and is not a Party as a
Debtor, the Company will procure that the person incurring those Liabilities or
giving that assurance accedes to this Agreement as a Debtor, in accordance with
paragraph (b) below, no later than 3 Business Days after the incurrence of
those Liabilities or the giving of that assurance.


 


(b)                                     With
effect from the date of acceptance by the Security Agent of a Debtor Accession
Deed duly executed and delivered to the Security Agent by the new Debtor or, if
later, the date specified in the Debtor Accession Deed, the new Debtor shall
assume the same obligations and become entitled to the same rights as if it had
been an original Party to this Agreement as a Debtor.


 


19.8                  Additional
parties


 


Each of the Parties appoints
the Security Agent to receive on its behalf each Debtor Accession Deed and
Creditor/Agent Accession Undertaking delivered to the Security Agent and the
Security Agent shall, as soon as reasonably practicable after receipt by it,


 


57














 


sign
and accept the same if it appears on its face to have been completed, executed
and, where applicable, delivered in the form contemplated by this Agreement or,
where applicable, by the relevant Finance Document.


 


19.9      Notification
by Security Agent


 


The
Security Agent shall notify the other Parties promptly of the receipt and
execution by it on their behalf of any Debtor Accession Deed or Creditor/Agent
Accession Undertaking.


 


20.        PARI PASSU DEBT


 


20.1      Pari
Passu Debt


 


(a)            One
or more members of the Group may from time to time incur Pari Passu Debt in
accordance with the terms of the Bonds Indenture provided incurrence of the
same is permitted or consented to pursuant to the RCF Facility Agreement and
the OeKB Facilities.


 


(b)            Such
Pari Passu Debt may, provided it is Designated Indebtedness (as defined in the
Bonds Indenture) and subject to and in accordance with the terms of sections
4.12 and 4.19 of the Bonds Indenture and the terms of this Agreement, be
designated as Secured Obligations under this Agreement and allowed to share in
the Security created under the Shared Transaction Security.


 


20.2      Pari
Passu Notice


 


(a)            The
Company may at any time notify the Security Agent of the incurrence or intended
incurrence of Pari Passu Debt that is proposed to be designated as Secured
Obligations under this Agreement by delivery to the Security Agent of a duly
completed Pari Passu Notice.


 


(b)            A
Pari Passu Notice will not be regarded as duly completed unless:


 


(i)        it
identifies:


 


(A)      the
type of facility;


 


(B)      the
amount, currency and maturity;


 


(C)      the
proposed borrower(s) and initial lenders or underwriters,


 


for
the Pari Passu Debt;


 


(ii)       it
confirms that the Pari Passu Debt is to be designated as Secured Obligations
for the purposes of this Agreement and the Shared Transaction Security;


 


(iii)      it
confirms the intended ranking of such Pari Passu Debt to be pari passu in
relation to the existing Senior Liabilities;


 


(iv)      it
specifies the proposed effective date when the Pari Passu Debt will be deemed
to be Secured Obligations under this Agreement and secured by the Shared
Transaction Security (“Pari Passu Effective Date”);


 


58

















 


(v)       it
confirms that all conditions, under the Bonds Indenture, the RCF Facility
Agreement and the OeKB Facilities to incurring such Pari Passu Debt and
allowing it to share in the Security under the Shared Transaction Security have
been satisfied or waived; and


 


(vi)      it
attaches copies of any Pari Passu Documents or provides other detail or
information in relation to the Pari Passu Debt available to it which the
Security Agent may reasonably request;


 


(c)             The
Security Agent shall promptly after receipt by it of a Pari Passu Notice notify
the Agents.


 


20.3      Pari
Passu Effective Date


 


(a)            Provided
that the Company has delivered a Pari Passu Notice in satisfaction of the
conditions in Clause 20.2(b) above and subject always to Clause 20.6 (Designated Pari Passu Security), where the Company has
designated as Secured Obligations the Pari Passu Debt identified in that Pari
Passu Notice, on and from the Pari Passu Effective Date:


 


(i)        such
Pari Passu Debt will be secured by the Security created under the Shared
Transaction Security on a first-ranking basis pari passu with all other Senior
Liabilities;


 


(ii)       each
reference in this Agreement to “Senior Liabilities”,
“Finance Documents”, “Finance Parties”, “Majority Senior Creditors”
and “Agents” will be deemed to include a
reference to the Pari Passu Debt, Pari Passu Documents, Pari Passu Finance
Parties, Pari Passu Lenders, Majority Pari Passu Lenders and Pari Passu Agent,
respectively, applicable to the Pari Passu Debt designated by the Company; and


 


(iii)      this
Agreement shall operate and be construed for all purposes as if such Pari Passu
Debt was Senior Liabilities and the Pari Passu Finance Parties in respect of
that Pari Passu Debt had all the same rights and obligations as other Finance
Parties in accordance with the terms of this Agreement.


 


20.4      Accession
of Pari Passu Finance Parties


 


(a)            Any
person who becomes a creditor in respect of any Pari Passu Debt that is
designated as Secured Obligations pursuant to a Pari Passu Notice shall (or its
trustee shall) accede to this Agreement as a Pari Passu Finance Party and shall
be treated for all purposes of this Agreement and the Shared Transaction
Security as a Finance Party, and shall in such case deliver to the Security
Agent a duly completed Creditor/Agent Accession Undertaking executed by it (or
its trustee), otherwise such person shall not be a Pari Passu Finance Party in
respect of such Pari Passu Debt and shall not benefit from the ranking and
priority under this Agreement or from the Security (or proceeds of enforcement)
under the Shared Transaction Security.


 


(b)            Each
Party (other than the relevant person under paragraph (a) above)
irrevocably authorises the Security Agent to execute on its behalf any 


 


59

















 


Creditor/Agent Accession Undertaking which has been duly
completed and signed on behalf of that proposed Pari Passu Finance Party.


 


20.5      Registration
and notice


 


The
Parties will co-operate with each other with a view to reflecting the priority
of the Security created pursuant to any Shared Transaction Security in any
register or with any filing or registration authority and in giving notice to
any person of any of the Security created pursuant to any Shared Transaction
Security.


 


20.6      Designated
Pari Passu Security


 


To
the extent Pari Passu Debt cannot be secured on the pari passu basis
contemplated by Clause 20.3 (Pari Passu Effective Date)
without the Security created pursuant to the current Shared Transaction
Security (the “Initial Transaction Security Documents”)
first being released and the consent to release has not been obtained, if and
as required in the Finance Documents, the Parties agree that such Pari Passu
Debt will (to the extent permitted by applicable law) be secured pursuant to
the execution of additional security documents (the “Additional
Transaction Security Documents”) creating Security over the same
assets subject to the Shared Transaction Security on a second or lesser ranking
basis.  Despite anything to the contrary
in this Agreement, any Pari Passu Debt which does not benefit from the Initial
Transaction Security Documents will nonetheless be deemed and treated for the
purposes of the Finance Documents and Clause 15 (Application
of proceeds) as secured by the Initial Transaction Security
Documents and the Additional Transaction Security Documents pari passu with
other Liabilities which would otherwise have the same ranking as contemplated
by Clause 20.3 (Pari Passu Effective Date).


 


21.        REFINANCING OF SENIOR
LIABILITIES


 


21.1      Refinancing:
amendments


 


(a)            The
Issuer and/or the Debtors will be entitled, without the consent of any other
party hereto, to refinance Liabilities in whole or in part arising under any of
the Finance Documents to the extent that the refinancing Liabilities (the “Refinancing Liabilities”) are on terms in accordance with
the relevant Finance Documents.


 


(b)            If
a refinancing occurs as contemplated by paragraph (a), the parties hereto will,
at the cost of the Company, enter into such amendments and supplements hereto
and execute such other documents in such form as the Company reasonably
requires to the extent necessary or appropriate:


 


(i)        to
replace references to the relevant Finance Documents and the relevant Senior
Liabilities with reference to, and to the agreement constituting, the
Refinancing Liabilities;


 


(ii)       to
ensure that the provisions hereunder that accrue to the benefit of and which
bind the Senior Creditors and the Agents accrue instead to the benefit of, and
bind, the lenders of the Refinancing Liabilities and their agent;


 


(iii)      otherwise
to give effect to the intent of this Clause 21.1.


 


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21.2      Refinancing:
releases


 


(a)            If
any refinancing occurs as contemplated by Clause 21.1, the Transaction Security
in respect of the remaining Senior Liabilities may, at the request of the agent
in respect of the Refinancing Liabilities (acting reasonably), be released and
retaken (and the Security Agent is authorised to effect such release) provided
that either:


 


(i)        the
Senior Creditors receive a legal opinion, in a form satisfactory to the
Security Agent (acting reasonably), confirming that after giving effect to the
transactions related to such refinancing, any new security granted in favour of
the Senior Creditors is valid and perfected (subject to any registration or
other requirements) and not subject to any new or increased hardening period;
or


 


(ii)       (A) the
Senior Creditors receive a legal opinion, in a form satisfactory to the
Security Agent (acting reasonably) confirming that after giving effect to the
transactions related to such refinancing, any new security granted in favour of
the Senior Creditors is valid and perfected (subject to any registration or
other requirements) and not subject to any hardening period which is in
addition to or greater than a corresponding hardening period to which the lenders
in respect of the Refinancing Liabilities were subject and (B) if to the
extent any release and retake of existing security for the Senior Creditors is
subject to new hardening periods in respect of a Debtor as identified in such
legal opinion, the Senior Creditors shall receive, from either an accounting
firm of international standing or a reputable internationally-recognised
investment bank, a solvency certificate in a form satisfactory to the Security
Agent (acting reasonably) in respect of each such Debtor.


 


(b)            To
the extent that the Security Agent is not satisfied with the opinion delivered
in paragraph (a)(i) above and if applicable, no solvency certificate is
delivered as required pursuant to paragraph (a)(ii) above, then:


 


(i)        the
then existing Transaction Security (“Existing Transaction
Security”) in respect of the Senior Liabilities shall not be
released and replaced;


 


(ii)       further
Transaction Security (“New Transaction Security”)
shall be given by the relevant Debtors securing amounts in respect of the
Refinancing Liabilities referred to in Clause 21.1 above on the same terms and
over the same assets as the Existing Transaction Security to the extent
required by the terms of the Refinancing Liabilities (it being acknowledged
that, to the extent permitted by law, if New Transaction Security is effected
by way of an amendment and restatement of the Existing Transaction Security
Documents, it shall be subject to the same provisos set out in (a)(i) and (ii) above);
and


 


(iii)      the
terms of this Agreement shall be amended to reflect the pari passu ranking of
the new Refinancing Liabilities and proceeds of any enforcement of the Existing
Transaction Security and the New 


 


61

















 


Transaction Security shall be paid to the Security Agent for
application in accordance with the order of application provided for in this
Agreement as if the Refinancing Liabilities replace the existing relevant
Senior Liabilities.


 


22.        COSTS
AND EXPENSES


 


22.1      Security
Agent’s ongoing costs


 


(a)            In
the event of (i) a Default or (ii) the Security Agent (acting
reasonably) considering it necessary or (iii) the Security Agent being
requested by a Debtor or the Majority Senior Creditors to undertake duties
which the Security Agent and the Company agree to be of an exceptional nature
and/or outside the scope of the normal duties of the Security Agent under the
Debt Documents, SPH shall pay to the Security Agent any additional (and in the
case of (ii) and (iii), reasonable) remuneration (together with any
applicable VAT) that may be agreed between them.


 


(b)            If
the Security Agent and the Company fail to agree upon the nature of those
duties or upon any additional remuneration, that dispute shall be determined by
an investment bank (acting as an expert and not as an arbitrator) selected by
the Security Agent and approved by the Company or, failing approval, nominated
(on the application of the Security Agent) by the President for the time being
of the Law Society of England and Wales (the costs of the nomination and of the
investment bank being payable by the Company) and the determination of any
investment bank shall be final and binding upon the parties to this Agreement.


 


22.2      Transaction
expenses


 


SPH
shall, promptly on demand, pay the Security Agent the amount of all reasonable
costs and expenses (including legal fees) (together with any applicable VAT)
incurred by the Security Agent in connection with the negotiation, preparation,
printing, execution, syndication and perfection of:


 


(a)            this
Agreement and any other documents referred to in this Agreement and the
Transaction Security; and


 


(b)            any
other Debt Documents executed after the date of this Agreement.


 


22.3      Stamp
taxes


 


(a)            SPH
shall pay and, within five Business Days of demand, indemnify each Secured
Party against any cost, loss or liability that that Secured Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Debt Document or other document which relates to any Debt
Document or any transaction contemplated by, or referenced in, any Debt
Document provided, however, that SPH shall not be so liable to pay and
indemnify a Secured Party in respect of any cost, loss or liability that a
Secured Party so incurs in relation to the RCF Finance Documents, the Bonds
Finance Documents, the OeKB Finance Documents, the Pari Passu Documents and the
Hedging Agreements to the extent that such cost, loss or liability results from
that Secured Party’s grossly negligent (grob fahrlässig)
or wilful (vorsätzlich) breach of its obligations
under paragraph (b) below.


 


62

















 


(b)            No
Party shall bring or send to, or otherwise produce in Austria, a Stamp Duty
Sensitive Document or communicate in writing other than in compliance with the
Stamp Duty Guidelines, in each case other than in the event that:


 


(i)        it
does not cause a liability of a Party to pay stamp duty or other Tax in
Austria;


 


(ii)       a
Party wishes to create and perfect, each in accordance with Clause 12.8 (Austrian Mortgages), and/or enforce any of its rights under
or in connection with a Debt Document in Austria and is only able to do so
(including, without limitation, by reason of any objection or defence raised by
the Company, the Issuer or a Debtor in any form of proceedings in Austria) by
bringing or sending to, or otherwise producing in, Austria a Stamp Duty
Sensitive Document and it would not be sufficient for that Party to bring or
send to, or otherwise produce in, Austria a document that is not a Stamp Duty
Sensitive Document for the purposes of such creation, perfection or
enforcement; in furtherance of the foregoing, no Party shall (1) object to
the introduction into evidence of an uncertified copy of any Stamp Duty
Sensitive Document or raise a defence to any action or to the exercise of any
remedy on the basis of an original or certified copy of any Stamp Duty
Sensitive Document not having been introduced into evidence, unless such
uncertified copy actually introduced into evidence does not accurately reflect
the content of the original document and (2) if such Party is a party to
the proceedings before an Austrian court or authority, contest the authenticity
(Echtheit) of an uncertified copy
of any such Stamp Duty Sensitive Document, unless such uncertified copy
actually introduced into evidence does not accurately reflect the content of
the original document; or


 


(iii)      a
Party is required by law, governmental body, court, authority or agency
pursuant to any legal requirement (whether for the purposes of initiating,
prosecuting, enforcing or executing any claim or remedy or enforcing any
judgment or otherwise) to bring or send a Stamp Duty Sensitive Document into,
or otherwise produce a Stamp Duty Sensitive Document in, Austria.


 


22.4      Interest
on demand


 


If
any Creditor or Debtor fails to pay any amount payable by it under this
Agreement on its due date, interest shall, without double-counting, accrue on
the overdue amount (and be compounded with it) from the due date up to the date
of actual payment (both before and after judgment and to the extent interest at
a default rate is not otherwise being paid on that sum under any other Debt
Document) at the rate which is one per cent. per annum over the rate at which
the Security Agent was being offered, by leading banks in the London interbank
market, deposits in an amount comparable to the unpaid amounts in the
currencies of those amounts for any period(s) that the Security Agent may
from time to time select.


 


63

















 


22.5      Enforcement
and preservation costs


 


SPH
shall, within three Business Days of demand, pay to the Security Agent the
amount of all costs and expenses (including legal fees and together with any
applicable VAT) incurred by it in connection with the enforcement of or the
preservation of any rights under any Debt Document and the Transaction Security
and any proceedings instituted by or against the Security Agent as a
consequence of taking or holding the Transaction Security or enforcing these
rights.


 


23.        INDEMNITIES


 


23.1      Debtors’
indemnity


 


Each
Debtor shall, within three Business Days of demand, indemnify the Security
Agent and every Receiver and Delegate against any cost, loss or liability
(together with any applicable VAT) incurred by any of them:


 


(a)            in
relation to or as a result of:


 


(i)        any
failure by SPH to comply with obligations under Clause 22 (Costs and Expenses);


 


(ii)       the
taking, holding, protection or enforcement of the Transaction Security;


 


(iii)      the
exercise of any of the rights, powers, discretions and remedies vested in the
Security Agent, each Receiver and each Delegate by the Debt Documents or by
law; or


 


(iv)      any
default by any Debtor in the performance of any of the obligations expressed to
be assumed by it in the Debt Documents; or


 


(b)            which
otherwise relates to any of the Security Property or the performance of the
terms of this Agreement (otherwise than as a result of its gross negligence or
wilful misconduct).


 


Each
Debtor expressly acknowledges and agrees that the continuation of its indemnity
obligations under this Clause 23.1 (Debtors’
indemnity) will not be prejudiced by any release or disposal under
Clause 13.2 (Distressed Disposals)
taking into account the operation of that Clause 13.2 (Distressed Disposals).


 


23.2      Priority
of indemnity


 


The
Security Agent and every Receiver and Delegate may, in priority to any payment
to the Secured Parties, indemnify itself (except in the case of its own gross
negligence or wilful misconduct) out of the Charged Property in respect of, and
pay and retain, all sums necessary to give effect to the indemnity in
Clause 23.1 (Debtors’ indemnity)
and shall have a lien on the Transaction Security and the proceeds of the
enforcement of the Transaction Security for all moneys payable to it.


 


23.3      Senior
Creditors’ indemnity


 


(a)            Each
Senior Creditor (except the Agents) shall (in the proportion that the
Liabilities due to it bears to the aggregate of the Liabilities due to all the
Senior Creditors for the time being (or, if the Liabilities due to each of
those Senior Creditors is zero, immediately prior to their being reduced to
zero)), indemnify 


 


64

















 


the Security Agent and every Receiver and every Delegate,
within three Business Days of demand, against any cost, loss or liability
incurred by any of them (otherwise than by reason of the relevant Security
Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) in
acting as Security Agent, Receiver or Delegate under the Debt Documents (unless
the relevant Security Agent, Receiver or Delegate has been reimbursed by a
Debtor pursuant to a Debt Document) and the Debtors shall jointly and severally
indemnify each Senior Creditor against any payment made by it under this
Clause 23 (Indemnities).


 


(b)             For
the purposes only of paragraph (a) above, to the extent that any
hedging transaction under a Hedging Agreement has not been terminated or
closed-out, the Hedging Liabilities due to any Hedge Counterparty in respect of
that hedging transaction will be deemed to be the amount, if any, which would
be payable to it under that Hedging Agreement in respect of those hedging
transactions, if the date on which the calculation is made was deemed to be an
Early Termination Date (as defined in the relevant ISDA Master Agreement) for
which the relevant Debtor is the Defaulting Party (as defined in the relevant
ISDA Master Agreement), that amount to be certified by the relevant Hedge
Counterparty and as calculated in accordance with the relevant Hedging Agreement.


 


23.4      Company’s
indemnity to Senior Creditors


 


The
Company shall promptly and as principal Debtor indemnify each Senior Creditor
against any cost, loss or liability (together with any applicable VAT), whether
or not reasonably foreseeable, incurred by any of them in relation to or
arising out of the operation of Clause 13.2 (Distressed Disposals).


 


24.        INFORMATION


 


24.1      Information
and dealing


 


(a)            The
Creditors shall provide to the Security Agent from time to time (through the
relevant Agent as applicable) any information that the Security Agent may
reasonably specify as being necessary or desirable to enable the Security Agent
to perform its functions as Security Agent or trustee.


 


(b)            Each
Senior Creditor shall deal with the Security Agent exclusively through the
relevant Agent except the Hedge Counterparties who shall deal directly with the
Security Agent and shall not deal through any Agent.


 


24.2      Disclosure


 


Notwithstanding
any agreement to the contrary, each of the Debtors consents, until the Senior
Discharge Date, to the disclosure by any of the Senior Creditors, the Agents
and the Security Agent to each other (whether or not through the Agents or the
Security Agent) of such information concerning the Debtors as any Senior
Creditor, the Agents or the Security Agent shall see fit, including details of
its outstanding Liabilities and in relation to any Hedging Agreement, the
Notional Amount (as defined in the relevant Hedging Agreement) of that Hedging
Agreement and the residual maturity of that Hedging Agreement.


 


65

















 


24.3      Notification
of prescribed events


 


(a)            If
an Event of Default or a Default under the RCF Facility Agreement either occurs
or ceases to be continuing the RCF Agent shall, upon becoming aware of that
occurrence or cessation, notify the Security Agent and the Security Agent
shall, upon receiving that notification, notify the Agents.


 


(b)            If
an Event of Default or a Default under the OeKB Facilities Agreement either
occurs or ceases to be continuing the OeKB Agent shall, upon becoming aware of
that occurrence or cessation, notify the Security Agent and the Security Agent
shall, upon receiving that notification, notify the Agents.


 


(c)             If
an Event of Default or a Default under the Bond Indenture either occurs or
ceases to be continuing the Bond Trustee shall, upon becoming aware of that
occurrence or cessation, notify the Security Agent and the Security Agent
shall, upon receiving that notification, notify the Agents.


 


(d)            If
an Acceleration Event occurs, the relevant Agent shall notify the Security
Agent and the Security Agent shall, upon receiving that notification, notify
each other Party.


 


(e)            If
the Security Agent enforces, or takes formal steps to enforce, any of the
Transaction Security it shall notify each Party of that action.


 


(f)              If
any Senior Creditor exercises any right it may have to enforce, or to take
formal steps to enforce, any of the Transaction Security it shall notify the
Security Agent and the Security Agent shall, upon receiving that notification,
notify each Party of that action.


 


(g)            If
a Debtor defaults on any Payment due under a Hedging Agreement, the Hedge
Counterparty which is party to that Hedging Agreement shall, upon becoming
aware of that default, notify the Security Agent and the Security Agent shall,
upon receiving that notification, notify the Agents.


 


(h)            If
a Hedge Counterparty terminates or closes-out, in whole or in part, any hedging
transaction under any Hedging Agreement under Clause 6.4 (Permitted Enforcement: Hedge Counterparties)
it shall notify the Security Agent and the Security Agent shall, upon receiving
that notification, notify the Agents.


 


(i)              If
an Event of Default or a Default under a Pari Passu Document either occurs or
ceases to be continuing the Pari Passu Agent shall, upon becoming aware of that
occurrence or cessation, notify the Security Agent and the Security Agent
shall, upon receiving that notification, notify the Agents.


 


(j)              Each
of the Agents and the Hedge Counterparties shall promptly notify the Security
Agent of the occurrence of the Senior Discharge Date.


 


66

















 


25.        NOTICES


 


25.1      Communications
in writing


 


Any
communication to be made under or in connection with this Agreement shall be
made in writing and, unless otherwise stated, may be made by fax or letter and,
in all cases, shall be made in accordance with the Stamp Duty Guidelines.


 


25.2      Security
Agent’s communications with Senior Creditors


 


The
Security Agent shall be entitled to carry out all dealings:


 


(a)            with
the Senior Creditors (except the Hedge Counterparties), through the relevant
Agent and may give to the relevant Agent any notice or other communication
required to be given by the Security Agent to a Senior Creditor; and


 


(b)            with
each Hedge Counterparty directly with that Hedge Counterparty.


 


25.3      Addresses


 


The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with this Agreement
is:


 


(a)            in
the case of the Company, that identified with its name below;


 


(b)            in
the case of the Security Agent, that identified with its name below; and


 


(c)             in
the case of each other Party, that notified in writing to the Security Agent on
or prior to the date on which it becomes a Party,


 


or
any substitute address, fax number or department or officer which that Party
may notify to the Security Agent (or the Security Agent may notify to the other
Parties, if a change is made by the Security Agent) by not less than five
Business Days’ notice provided that such
address, fax number, department or officer shall be outside the Republic of
Austria.


 


25.4      Delivery


 


(a)            Any
communication or document made or delivered by one person to another under or
in connection with this Agreement will only be effective:


 


(i)        if
by way of fax, when received in legible form; or


 


(ii)       if
by way of letter, when it has been left at the relevant address or seven Business
Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address,


 


and,
if a particular department or officer is specified as part of its address
details provided under Clause 25.3 (Addresses), if
addressed to that department or officer.


 


(b)            Any
communication or document to be made or delivered to the Security Agent will be
effective only when actually received by the Security Agent and then only if it
is expressly marked for the attention of the department or officer


 


67














 


identified with the Security Agent’s signature below (or any
substitute department or officer as the Security Agent shall specify for this
purpose).


 


(c)             Any
communication or document made or delivered to the Company in accordance with
this Clause 25.4 will be deemed to have been made or delivered to each of
the Debtors.


 


25.5      Notification
of address and fax number


 


Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 25.3 (Addresses)
or changing its own address or fax number, the Security Agent shall notify the
other Parties.


 


25.6      Electronic
communication


 


(a)            Any
communication to be made between the Security Agent and the Agents, the Senior
Creditors or a Hedge Counterparty under or in connection with this Agreement
may be made by electronic mail or other electronic means, if the Security
Agent, the relevant Agent and the relevant Senior Creditor or Hedge
Counterparty:


 


(i)        agree
that, unless and until notified to the contrary, this is to be an accepted form
of communication;


 


(ii)       notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and


 


(iii)      notify
each other of any change to their address or any other such information
supplied by them.


 


(b)            Any
electronic communication made between the Security Agent and the Agents, a
Senior Creditor or a Hedge Counterparty will be effective only when actually
received in readable form and in the case of any electronic communication made
by a Senior Creditor, Hedge Counterparty or the relevant Agent to the Security
Agent only if it is addressed in such a manner as the Security Agent shall
specify for this purpose.


 


(c)             Each
of the Parties agrees that it will comply with the Stamp Duty Guidelines.


 


25.7      English
language


 


(a)            Any
notice or communication given under or in connection with this Agreement must
be in English.


 


(b)            All
other documents provided under or in connection with this Agreement must be:


 


(i)        in
English; or


 


(ii)       if
not in English, accompanied by a certified English translation and, in this
case, the English translation will prevail unless the document is a
constitutional, statutory or other official document.


 


68

















 


26.        PRESERVATION


 


26.1      Partial
invalidity


 


If,
at any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of that provision under the law of any
other jurisdiction will in any way be affected or impaired.


 


26.2      No
impairment


 


If,
at any time after its date, any provision of a Debt Document (including this
Agreement) is not binding on or enforceable in accordance with its terms
against a person expressed to be a party to that Debt Document, neither the
binding nature nor the enforceability of that provision or any other provision
of that Debt Document will be impaired as against the other party(ies) to that
Debt Document.


 


26.3      Remedies
and waivers


 


No
failure to exercise, nor any delay in exercising, on the part of any Party, any
right or remedy under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right or remedy prevent any further or other
exercise or the exercise of any other right or remedy.  The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by law.


 


26.4      Waiver
of defences


 


The
provisions of this Agreement will not be affected by an act, omission, matter
or thing which, but for this Clause 26.4, would reduce, release or
prejudice the subordination and priorities expressed to be created by this
Agreement including (without limitation and whether or not known to any Party):


 


(a)            any
time, waiver or consent granted to, or composition with, any Debtor or other
person;


 


(b)            the
release of any Debtor or any other person under the terms of any composition or
arrangement with any creditor of any member of the Group;


 


(c)             the
taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Debtor or other person or any non-presentation or non-observance
of any formality or other requirement in respect of any instrument or any
failure to realise the full value of any Security;


 


(d)            any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of any Debtor or other person;


 


(e)            any
amendment, novation, supplement, extension (whether of maturity or otherwise)
or restatement (in each case, however fundamental and of whatsoever nature, and
whether or not more onerous) or replacement of a Debt Document or any other
document or security including any change in the purpose of, any extension of
or any increase in any facility or the addition of any new facility under any Debt
Document or security;


 


69

















 


(f)              any
unenforceability, illegality or invalidity of any obligation of any person
under any Debt Document or any other document or security;


 


(g)            any
intermediate Payment of any of the Liabilities owing to the Senior Creditors in
whole or in part;


 


(h)            any
insolvency or similar proceedings; or


 


(i)              any
postponement, discharge, reduction, non-provability or other similar
circumstance affecting any obligation of any person under any Debt Document
resulting from any insolvency, liquidation or dissolution proceedings or from
any law, regulation or order.


 


26.5      Priorities
not affected


 


Except
as otherwise provided in this Agreement the priorities referred to in
Clause 2 (Ranking and Priority) will:


 


(a)            not
be affected by any reduction or increase in the principal amount secured by the
Transaction Security in respect of the Liabilities owing to the Senior
Creditors or by any intermediate reduction or increase in, amendment or
variation to any of the Debt Documents, or by any variation or satisfaction of,
any of the Liabilities or any other circumstances;


 


(b)            apply
regardless of the order in which or dates upon which this Agreement and the
other Debt Documents are executed or registered or notice of them is given to
any person; and


 


(c)             secure
the Liabilities owing to the Senior Creditors in the order specified,
regardless of the date upon which any of the Liabilities arise or of any
fluctuations in the amount of any of the Liabilities outstanding.


 


26.6      Preservation
of Security


 


For
the purposes of Article 1271 et seq of the Belgian Civil Code, the Parties
agree that upon any novation under the Finance Documents, the Transaction
Security, guarantees, indemnities, and other undertakings created by the
Finance Documents shall continue for the benefit of the Security Agent, any
other Secured Party, their successors, transferees and assignees, as the case
may be.


 


70

















 


27.        CONSENTS,
AMENDMENTS AND OVERRIDE


 


27.1      Required
consents


 


(a)            Subject
to paragraph (b) below, this Agreement may be amended or waived or any
consent may be given under it with the written agreement of the Agents (acting
on the instruction and on behalf of its Creditors required to consent or vote
in connection with provisions dealing with amendments and waivers in the
relevant Finance Document), the Hedge Counterparties, and the Security Agent
(except for amendments of a minor, technical or administrative nature which may
be effected by the Security Agent).


 


(b)            Subject
to Clause 27.4 (Exceptions), any
amendment or waiver or consent given in accordance with this Clause 27 (Consents, Amendments and Override) will be binding on all
Parties.


 


27.2      Amendments
and Waivers: Transaction Security Documents


 


(a)            Subject
to paragraph (b) of Clause 13.1 (Non-Distressed Disposals),
Clause 13.2 (Distressed Disposals), paragraph (b) below
and to Clause 27.4 (Exceptions)
and unless the provisions of any Debt Document expressly provide otherwise, the
Security Agent may, if authorised by the Majority Senior Creditors, and if the
Company consents, amend the terms of, waive any of the requirements of or grant
consents under, any of the Transaction Security Documents which shall be
binding on each Party.


 


(b)            Subject
to paragraph (c) of Clause 27.4 (Exceptions),
the prior consent of the Agents (acting on the instruction and on behalf of its
Creditors required to consent or vote in connection with provisions dealing
with consents, amendments and waivers in the relevant Finance Document), the
Hedge Counterparties and the Security Agent is required to authorise any
amendment or waiver of, or consent under, any Transaction Security Document
which would affect the nature or scope of the Charged Property or the manner in
which the proceeds of enforcement of the Transaction Security are distributed.


 


27.3      Effectiveness


 


Any
amendment, waiver or consent given in accordance with this Clause 27 (Consents, Amendments and Override) will be
binding on all Parties and the Security Agent may effect, on behalf of the
relevant Agent or any Creditor, any amendment, waiver or consent permitted by
this Clause 27 (Consents, Amendments
and Override).


 


27.4      Exceptions


 


(a)            Subject
to paragraph (c) below, if the amendment, waiver or consent may impose new
or additional obligations on or withdraw or reduce the rights of any Party
other than:


 


(i)        in
the case of a Senior Creditor, in a way which affects or would affect Senior
Creditors of that Party’s class generally; or


 


(ii)       in
the case of a Debtor, to the extent consented to by the Company under paragraph
(a) of Clause 27.2 (Amendments and
Waivers: Transaction Security Documents),


 


71

















 


the
consent of that Party is required.


 


(b)            Subject
to paragraph (c) below, an amendment, waiver or consent which relates to
the rights or obligations of any Agent, the Security Agent (including, without
limitation, any ability of the Security Agent to act in its discretion under
this Agreement) or a Hedge Counterparty may not be effected without the consent
of that Agent or, as the case may be, the Security Agent or that Hedge
Counterparty.


 


(c)             Neither
paragraph (a) nor (b) above, nor paragraph (a) nor (b) of
Clause 27.2 (Amendments and Waivers: Transaction
Security Documents) shall apply:


 


(i)        to
any release of Transaction Security, claim or Liabilities; or


 


(ii)       to
any consent


 


which,
in each case, the Security Agent gives in accordance with Clause 13 (Proceeds of Disposals).


 


27.5      Deemed
consent


 


(a)            If,
at any time prior to the Senior Discharge Date, the Senior Creditors give a
consent, approval, release or waiver or agreement to any amendment (a “Consent”) in respect of the Finance Documents then, if that
action was permitted by the terms of this Agreement, the Intra-Group Lenders
and the Company will (or will be deemed to):


 


(i)        give
a corresponding Consent in equivalent terms in relation to each of the Debt
Documents to which they are a party; and


 


(ii)       do
anything (including executing any document) that the Senior Creditors may
reasonably require to give effect to paragraph (a) of this
Clause 27.5.


 


27.6      Excluded
consents


 


Clause 27.5
(Deemed consent) does not apply
to any Consent which has the effect of:


 


(a)            increasing
or decreasing the Liabilities; or


 


(b)            changing
the basis upon which any Permitted Payments are calculated (including the
timing, currency or amount of such Payments).


 


27.7      No
liability


 


None
of the Senior Creditors or Agents will be liable to any other Creditor or
Debtor for any Consent given or deemed to be given under this Clause 27.


 


27.8      Agreement
to override


 


The
other Debt Documents are subject to this Agreement.  Unless expressly stated otherwise in this
Agreement, in the event of a conflict between the terms of a Debt Document and
this Agreement the terms of this Agreement shall prevail.  In the event of a conflict in respect of the
terms “Parallel Debt Obligations” and/or “Secured Obligations” between the
German Security Documents (as entered into on the Signing Date) and this
Agreement, the German Security Documents shall prevail.


 


72

















 


28.        PLACE
OF PERFORMANCE


 


28.1      Performance


 


The
Parties shall perform their obligations under or in connection with the Finance
Documents exclusively at the Place of Performance (as defined below), but in no
event at a place in Austria and the performance of any obligations or liability
under or in connection with the Finance Documents within the Republic of
Austria shall not constitute discharge or performance of such obligation or
liability. For the purposes of the above, “Place
of Performance” means:


 


(a)            in
relation to any payment by a Debtor or a Creditor under or in connection with
this Agreement, the place at which such payment is to be made pursuant to this
Agreement but in any event outside of Austria; and


 


(b)            in
relation to any other obligation or liability under or in connection with this
Agreement, the premises of the Security Agent in London or any other place
outside of Austria as the Security Agent specifies from time to time.


 


28.2      Delivery
of notices by Security Agent


 


Notwithstanding
Clause 25 (Notices) and Clause 28
(Place of  Performance) but subject to Clause 22.3 (Stamp Taxes) and paragraph (c) of
Clause 25.6 (Electronic communication),
each of the Debtors agrees that any notice or document delivered on it under or
in connection with this Agreement shall be sent to an address located outside
of Austria which, unless it notifies the Security Agent otherwise, shall be
154, Chaussee de la Hulpe, B-1170 Brussels, (Watermael-Boitsfort), Belgium.


 


29.        COUNTERPARTS


 


This
Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.


 


30.        GOVERNING
LAW


 


This
Agreement and any non-contractual obligation arising out of or in connection
with this Agreement is governed by English law.


 


31.        ENFORCEMENT


 


31.1      Jurisdiction


 


(a)            The
courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Agreement (including a dispute relating to the
existence, validity or termination of this Agreement) or any non-contractual
obligation arising out of or in connection with this Agreement (a “Dispute”).


 


(b)            The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.


 


(c)             This
Clause 31.1 is for the benefit of the Secured Parties only.  As a result, no Secured Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction.  To the extent allowed
by law, the Secured Parties may take concurrent proceedings in any number of
jurisdictions.


 


73

















 


31.2      Service
of process


 


(a)            Without
prejudice to any other mode of service allowed under any relevant law each
Debtor (unless incorporated in England and Wales):


 


(A)      irrevocably
appoints Sappi (UK) Sales Office Ltd as its agent for service of process in
relation to any proceedings before the English courts in connection with this
Agreement; and


 


(B)      agrees
that failure by a process agent to notify the relevant Debtor of the process
will not invalidate the proceedings concerned;


 


(b)            If
any person appointed as an agent for service of process is unable for any
reason to act as agent for service of process, the Company (in the case of an
agent for service of process for a Debtor) must immediately (and in any event
within 15 Business Days of such event taking place) appoint another agent on
terms acceptable to the Senior Creditors. 
Failing this, the Majority Senior Creditors may appoint another agent
for this purpose.


 


This Agreement has been delivered as a deed on the date stated at the
beginning of this Agreement.


 


74

















 


SCHEDULE
1

THE PARTIES


 


Part 1  The RCF Finance
Parties


 


ABN AMRO
Bank N.V., Belgian Branch

Citibank, N.A. London Branch

HSBC Bank plc

J.P. Morgan Europe Limited

J.P. Morgan Plc

KBC Bank Deutschland AG

KBC Bank NV

Natixis

The Royal Bank of Scotland Plc

UniCredit Bank Austria AG

UniCredit Bank Czech Republic, a.s.


 


Part 2 
The OeKB Lenders


 


BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische
Postparkasse AG

Calyon Credit Agricole CIB

Erste Bank der oesterreichischen Sparkassen AG

Investkredit Bank AG

KBC Bank Deutschland AG

Raiffeisenlandesbank Oberösterreich Aktiengesellschaft

Raiffeisen Zentralbank Österreich AG

Standard Chartered Bank

ABN AMRO Bank N.V.

UniCredit Bank Austria AG

Vorarlberger Landes- und Hypothekenbank Aktiengesellschaft


 


Part 3  The Hedge
Counterparties


 


ABN AMRO
Bank N.V., London Branch

JPMorgan Chase Bank, National Association


 


Part 4  The Intra-Group
Lenders


 


Sappi Austria Produktions-GmbH & Co. KG
(Austria)

Sappi Papier Holding GmbH (Austria)

Sappi Europe SA (Belgium)

Sappi International S.A. (Belgium)

Sappi Lanaken Press Paper NV (Belgium)

Sappi Finland I Oy (Finland)

Sappi Stockstadt GmbH


 


75

















 


Sappi
Pulp Asia Limited (Hong Kong)

Sappi Maastricht BV (Netherlands)

Sappi Netherlands BV (Netherlands)

Sappi Deutschland Holding GmbH (Germany)

Sappi Trading Hong Kong Limited (Hong Kong)

Sappi UK Holdings BV (Netherlands)


 


Part 5 The Original Debtors


 


	
  Original Debtors

  	
   

  	
  Registration number (or
  equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Limited

  	
   

  	
  1936/008963/06
  (South Africa)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Papier Holding GmbH

  	
   

  	
  FN167931h
  (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi
  International SA

  	
   

  	
  RPM
  Brussels 0449.887.582 (Belgium)

  
	
   

  	
   

  	
   

  
	
  SD
  Warren Company

  	
   

  	
  878041
  (Pennsylvania)

  
	
   

  	
   

  	
   

  
	
  SDW
  Holdings Corporation

  	
   

  	
  2441157
  (Delaware)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Cloquet LLC

  	
   

  	
  3498035
  (Delaware)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Lanaken NV

  	
   

  	
  RPR Tongeren 0420.732.352 (Belgium)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Deutschland GmbH

  	
   

  	
  HRB59586
  registered with the Commercial Register of Hanover (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Deutschland Holding GmbH

  	
   

  	
  HRB110140
  registered with the Commercial register of Hildesheim (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Lanaken Press Paper NV

  	
   

  	
  RPR Tongeren 0426.966.779 (Belgium)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Pulp Asia Limited

  	
   

  	
  0925340
  (Hong Kong)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Nijmegen BV

  	
   

  	
  10041104
  (Netherlands)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Alfeld GmbH

  	
   

  	
  HRB110356
  registered with the Commercial Register of Hildesheim (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Maastricht BV

  	
   

  	
  14631722
  (Netherlands)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Netherlands BV

  	
   

  	
  14631721
  (Netherlands)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Ehingen GmbH

  	
   

  	
  HRB490647
  registered with the Commercial Register of Ulm (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Europe SA

  	
   

  	
  RPM Brussels 0449.654.386 (Belgium)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Gratkorn GmbH

  	
   

  	
  FN
  69000x (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi
  MagnoStar GmbH

  	
   

  	
  FN
  140031d (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Austria Produktions - GmbH & Co. KG

  	
   

  	
  FN
  223882p (Austria)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Stockstadt GmbH

  	
   

  	
  HRB8118
  registered with the Commercial Register of Aschaffenburg (Germany)

  
	
   

  	
   

  	
   

  
	
  Sappi
  Finland I Oy

  	
   

  	
  2219145-0
  (Finland)

  



 


76














 


SCHEDULE 4


SECURITY ENFORCEMENT PRINCIPLES


 


1.          It shall be the aim of any
enforcement of the Transaction Security to achieve the Security Enforcement
Objective.


 


2.          The Security Enforcement Principles
may be amended, varied or waived with the prior written consent of the Majority
Senior Creditors.


 


3.          On:


 


(a)         a proposed enforcement of any of the
Transaction Security over assets other than shares in a member of the Group,
where the aggregate book value of such assets exceeds EUR 1,000,000 (or its
equivalent); or


 


(b)         a proposed enforcement of any of the
Transaction Security over some or all of the shares in a member of the Group
over which Transaction Security exists,


 


the
Security Agent shall (unless it is incompatible with, or unnecessary in respect
of enforcement procedures in a relevant jurisdiction) obtain an opinion from a
reputable internationally-recognised investment bank or international
accounting firm (which may include an Investment Bank, as defined in Clause
12.3(d)) (a “Financial Adviser”)
that the consideration for the sale is fair from a financial point of view
after taking into account all relevant circumstances and that such sale is in
accordance with the Security Enforcement Objective.


 


4.          The Security Agent shall be under no
obligation to appoint a Financial Adviser or to seek the advice of a Financial
Adviser, unless expressly required to do so by this Schedule or any other
provision of this Agreement.


 


5.          To the extent that the provisions of
Clause 13.4 (Flip-Up of Liabilities on a Distressed
Disposal) are impaired, challenged or are otherwise not applied
(whether by relevant law or regulation or otherwise), any enforcement of the
share pledge over Sappi Papier Holding GmbH in Austria may only be made if
there is a simultaneous enforcement of the share pledge over Sappi
Manufacturing (Pty) Limited in South Africa.


 


77














 


SIGNATURES


 


The Debtors


 


The Company


 


	
  SIGNED by

  	
  Signature(s)

  
	
  M.R.
  Thompson on behalf of

  	
   

  
	
  SAPPI LIMITED

  	
  /s/
  M.R.Thompson

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  48 Ameshoff Street

  	
   

  
	
   

  	
   

  
	
  Braamfontein

  	
   

  
	
   

  	
   

  
	
  Johannesburg

  	
   

  
	
   

  	
   

  
	
  2001

  	
   

  
	
   

  	
   

  
	
  Fax:
  +27 11 339 1881

  	
   

  
	
   

  	
   

  
	
  Attention:
  D.J. O’Connor

  	
   

  



 


78

















 


Other Original Debtors


 


 


	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum and J.H. Pässler on behalf of

  	
   

  
	
  SAPPI PAPIER HOLDING GMBH

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
  /s/
  J.H. Pässler

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  J.H.
  Pässler on behalf of

  	
   

  
	
  SAPPI INTERNATIONAL SA

  	
  /s/
  J.H. Pässler 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  



 


79

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  A.
  Luchene on behalf of

  	
   

  
	
  SD WARREN COMPANY

  	
  /s/
  A. Luchene

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Sappi Fine Paper North America

  	
   

  
	
   

  	
   

  
	
  225 Franklin St.

  	
   

  
	
   

  	
   

  
	
  Boston, MA 02110 USA

  	
   

  
	
   

  	
   

  
	
  Fax:
  617-368-6580

  	
   

  
	
   

  	
   

  
	
  Attention:
  Office of General Counsel

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  A.
  Luchene on behalf of

  	
   

  
	
  SDW HOLDINGS CORPORATION

  	
  /s/
  A. Luchene 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Sappi Fine Paper North America

  	
   

  
	
   

  	
   

  
	
  225 Franklin St.

  	
   

  
	
   

  	
   

  
	
  Boston, MA 02110 USA

  	
   

  
	
   

  	
   

  
	
  Fax:
  617-368-6580

  	
   

  
	
   

  	
   

  
	
  Attention:
  Office of General Counsel

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  A.
  Luchene on behalf of

  	
   

  
	
  SAPPI CLOQUET LLC

  	
  /s/
  A. Luchene 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Sappi Fine Paper North America

  	
   

  
	
   

  	
   

  
	
  225 Franklin St.

  	
   

  
	
   

  	
   

  
	
  Boston, MA 02110 USA

  	
   

  
	
   

  	
   

  
	
  Fax:
  617-368-6580

  	
   

  
	
   

  	
   

  
	
  Attention:
  Office of General Counsel

  	
   

  



 


80

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  
	
  SAPPI LANAKEN NV

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  M.
  Eikelenboom on behalf of

  	
   

  
	
  SAPPI DEUTSCHLAND GMBH

  	
  /s/
  M. Eikelenboom 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum and M.J.H. Quaedvlieg on behalf of

  	
   

  
	
  SAPPI DEUTSCHLAND HOLDING GMBH

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
  /s/ M.J.H. Quaedvlieg

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  



 


81

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  
	
  SAPPI LANAKEN PRESS PAPER NV

  	
  /s/
  B.J. Wiersum 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE COMMON SEAL of

  	
   

  
	
   

  	
   

  
	
  SAPPI PULP ASIA LIMITED was hereunto

  	
   

  
	
  affixed
  and thereby executed by it as a DEED

  	
   

  
	
  in
  the presence of: En-Min Chua

  	
   

  
	
   

  	
   

  
	
  Authorised
  Signatory:

  	
  /s/
  H. Kirsten

  	
   

  	
  /seal affixed/

  
	
  Name:

  	
  H.
  Kirsten

  	
   

  
	
  Title:

  	
  Authorised
  Signatory

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  G.G
  Wassens on behalf of

  	
   

  
	
  SAPPI NIJMEGEN BV

  	
  /s/
  G.G Wassens 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Ambachtsweg 2,

  	
   

  
	
   

  	
   

  
	
  6541 DB Nijmegen / NL

  	
   

  
	
   

  	
   

  
	
  Fax:
  +31243710840

  	
   

  
	
   

  	
   

  
	
  Attention:
  G.G Wassens

  	
   

  
					



 


82

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  M.
  Hottmann on behalf of

  	
   

  
	
  SAPPI ALFELD GMBH

  	
  /s/
  M. Hottmann 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Sappi Alfeld GmbH,

  	
   

  
	
   

  	
   

  
	
  Mühlenmasch 1,

  	
   

  
	
   

  	
   

  
	
  31061 Alfeld, Germany

  	
   

  
	
   

  	
   

  
	
  Fax:
  + 49 (0)51-81-77-755

  	
   

  
	
   

  	
   

  
	
  Attention:
  Juliane Severin

  	
   

  
	
  Referee Tax

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  E.
  de Vries on behalf of

  	
   

  
	
  SAPPI MAASTRICHT BV

  	
  /s/ E. de Vries 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Biesenweg 16,

  	
   

  
	
   

  	
   

  
	
  6211 AA Maastricht

  	
   

  
	
   

  	
   

  
	
  Fax:
  +31-43-3822731

  	
   

  
	
   

  	
   

  
	
  Attention:
  J. Pauly

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  
	
  SAPPI NETHERLANDS BV

  	
  /s/
  B.J. Wiersum 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  



 


83

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  S.Wurdinger
  on behalf of

  	
   

  
	
  SAPPI EHINGEN GMBH

  	
  /s/
  S.Wurdinger 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Biberacher Str. 73,

  	
   

  
	
   

  	
   

  
	
  89584 Ehingen, Germany

  	
   

  
	
   

  	
   

  
	
  Fax:
  +49 (0) 7391 501 - 315

  	
   

  
	
   

  	
   

  
	
  Attention:
  Renate Distelrath

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  
	
  SAPPI EUROPE SA

  	
  /s/
  B.J. Wiersum 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  J.H.
  Pässler on behalf of

  	
   

  
	
  SAPPI GRATKORN GMBH

  	
  /s/
  J.H. Pässler 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  



 


84

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  J.H.
  Pässler on behalf of

  	
   

  
	
  SAPPI MAGNOSTAR GMBH

  	
  /s/
  J.H. Pässler 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  J.H.
  Pässler on behalf of

  	
   

  
	
  SAPPI AUSTRIA PRODUKTIONS — GMBH & CO. KG

  	
  /s/
  J.H. Pässler 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SIGNED by

  	
  Signature(s)

  
	
  B.
  Jäggi on behalf of

  	
   

  
	
  SAPPI STOCKSTADT GMBH

  	
  /s/
  B. Jäggi 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  D-638M Stockstadt,

  	
   

  
	
   

  	
   

  
	
  Obernburger Str. 1-9

  	
   

  
	
   

  	
   

  
	
  Fax:
  +49 (0) 6027 420823

  	
   

  
	
   

  	
   

  
	
  Attention:
  B. Jäggi

  	
   

  



 


85

















 


	
  SIGNED by

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  
	
  SAPPI FINLAND I OY

  	
  /s/
  B.J. Wiersum 

  
	
  and
  thereby executed by it as a DEED

  	
   

  
	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  
	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  
	
   

  	
   

  
	
  Belgium

  	
   

  
	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  
	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  



 


86














 


The Security Agent


 


EXECUTED
AS A DEED by affixing the common seal


 


of J.P. MORGAN EUROPE LIMITED


 


In the
presence of:


 


	
  R. Kean

  	
  /s/ R. Kean

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
  F. Gomboc

  	
  /s/ F. Gomboc

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  125 London Wall, London,
  EC2Y 5AJ

  	
  /seal
  affixed/

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44 207 777 2434

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Steve Clarke / Ching Loh

  	
   

  



 


 


The RCF Agent


 


EXECUTED
AS A DEED by affixing the common seal


 


of J.P. MORGAN EUROPE LIMITED


 


In the
presence of:


 


	
  R. Kean

  	
  /s/ R. Kean

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
  F. Gomboc

  	
  /s/ F. Gomboc

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  125 London Wall, London,
  EC2Y 5AJ

  	
  /seal
  affixed/

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44 207 777 2434

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Steve Clarke / Ching Loh

  	
   

  



 


87

















 


The Bond Trustee


 


EXECUTED
AS A DEED


 


By:          THE BANK OF NEW YORK
MELLON


 


acting
by its duly authorised signatories:


 


	
  P. Cattermole

  	
  /s/ P. Cattermole

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  N. Pahkala

  	
  /s/ N. Pahkala

  
	
  Name:

  	
   

  



 


 


	
  Address:

  	
   

  	
  One Canada Square,
  London, E14 5AL

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 (0) 207 964 2536

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Corporate Trust
  Administration

  	
   

  	
   

  



 


 


	
  in the presence of:

  	
  /s/ M. Laidley

  
	
   

  	
   

  
	
  Witness: M. Laidley

  	
   

  
	
   

  	
   

  
	
  Address: One Canada
  Square, London, E14 5AL

  	
   

  



 


 


The OeKB Agent


 


EXECUTED
AS A DEED


 


By:          UNICREDIT BANK AUSTRIA AG


 


Acting
by its duly authorised attorney:


 


	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  



 


	
  Address:

  	
   

  	
  Moor House, 120 London
  Wall, London, EC2Y 5ET

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  



 


	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  



 


	
  Address:

  	
   

  	
  Moor House, 120 London
  Wall, London, EC2Y 5ET

  



 


88

















 


The Bank Austria Agent


 


EXECUTED
AS A DEED


 


By:          UNICREDIT BANK AUSTRIA AG


 


Acting
by its duly authorised attorney:


 


	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  



 


	
  Address:

  	
   

  	
  Moor House, 120 London
  Wall, London, EC2Y 5ET

  



 


	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  	
  Moor House, 120 London
  Wall, London, EC2Y 5ET

  
				



 


89

















 


The RCF Finance Parties


 


EXECUTED
AS A DEED


 


By:          ABN AMRO BANK N.V.,
BELGIAN BRANCH


 


Acting
by its duly authorised attorney:


 


	
  M.
  Giesen

  	
  /s/ M.
  Giesen

  
	
  Name:

  	
   

  



 


 


	
  Address:

  	
   

  	
  135 Bishopsgate, London,
  EC2M 3UR

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 207 085 5920

  



 


Attention:
M. Giesen


 


 


	
  In the presence of:

  	
  /s/ D. Hague

  
	
   

  	
   

  
	
  Witness name: D. Hague

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  135 Bishopsgate, London,
  EC2M 3UR

  
			



 


 


EXECUTED
AS A DEED


 


By:          CITIBANK, N.A. LONDON
BRANCH


 


acting
by its duly authorised signatory:


 


	
  T. Lambourn

  	
  /s/ T. Lambourn

  
	
  Name:

  	
   

  



 


 


	
  Address:

  	
   

  	
  Citigroup Centre, Canary
  Wharf, London, E14 5LB, UK.

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 203 364 2688

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  T. Lambourn

  



 


 


	
  in the presence of:

  	
  /s/ I. Starlevic

  
	
   

  	
   

  
	
  Witness: I. Starlevic

  	
   

  



 


Address:
Citigroup Centre, Canary Wharf, London, E14 5LB, UK


 


90

















 


EXECUTED
AS A DEED


 


By:          HSBC BANK PLC


 


acting
by its duly authorised attorney


 


	
  D. Stent

  	
  /s/ D. Stent

  
	
  Name:

  	
   

  



 


 


	
  Address:

  	
  Level 3, 8 Canada
  Square, London, E14 5HQ

  
	
   

  	
   

  
	
  Fax:

  	
  +44 20 7992 4989

  
	
   

  	
   

  
	
  Attention:

  	
  A. Kurt - Elli

  



 


 


	
  in the presence of:

  	
  /s/ A. Jennens

  
	
   

  	
   

  
	
  Witness: A. Jennens

  	
   

  
	
   

  	
   

  
	
  Address: One Silk
  Street, London EL2Y 8HQ

  	
   

  



 


91

















 


EXECUTED
AS A DEED by affixing the common seal


 


of J.P. MORGAN EUROPE LIMITED


 


In the
presence of:


 


	
  R. Kean

  	
  /s/ R. Kean

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
  F. Gomboc

  	
  /s/ F. Gomboc

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
   

  	
  /seal
  affixed/

  



 


 


Address:


 


Fax:


 


Attention:


 


 


EXECUTED
AS A DEED by affixing the common seal


 


of J.P. MORGAN PLC


 


In the
presence of:


 


	
  R. Kean

  	
  /s/ R. Kean

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
  F. Gomboc

  	
  /s/ F. Gomboc

  
	
  Authorised signatory

  	
   

  
	
   

  	
   

  
	
   

  	
  /seal
  affixed/

  



 


Address:


 


Fax:


 


Attention:


 


92

















 


EXECUTED
AS A DEED


 


By:          KBC BANK DEUTSCHLAND AG


 


acting by
its duly authorised signatories


 


	
  S. Van
  Dooren

  	
  /s/ S.
  Van Dooren

  
	
  Name:

  	
   

  
	
  Title: Account Officer

  	
   

  
	
   

  	
   

  
	
  M. Leterme

  	
  /s/ M. Leterme

  



Name:


Title:
Manager Corporate Center Brussels


	
  Address:

  	
   

  	
  Havenlaan 16, B-1080,
  Brussels

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +32 2 421 52 01

  



 


Attention:


 


 


EXECUTED
AS A DEED


 


By:          KBC BANK NV


 


acting by
its duly authorised signatories


 


	
  G. De
  Poorter

  	
  /s/ G.
  De Poorter

  
	
  Name:

  	
   

  
	
  Title: Relationship
  Manager

  	
   

  
	
   

  	
   

  
	
  M. Leterme

  	
  /s/ M. Leterme

  



Name:


Title:
Manager Corporate Center Brussels


 


	
  Address:

  	
   

  	
  Havenlaan 16, B-1080,
  Brussels

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +32 2 421 52 01

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  



 


93














 


	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  NATIXIS

  	
   

  
	
   

  	
   

  
	
  acting by its duly authorised
  signatories

  	
   

  
	
   

  	
   

  
	
  P. Massot

  	
  /s/ P. Massot

  
	
  Name:

  	
   

  
	
  Title: Directeur

  	
   

  
	
   

  	
   

  
	
  T. Barbot

  	
  /s/ T. Barbot

  
	
  Name:

  	
   

  
	
  Title: Relationship Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  THE ROYAL BANK OF SCOTLAND PLC

  	
   

  
	
   

  	
   

  
	
  acting by its duly authorised
  signatory:

  	
   

  
	
   

  	
   

  
	
  R. Bartlett

  	
  /s/ R. Bartlett

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  135 Bishopsgate, London, EC2M 3UR

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
  +44 20 7085 5920

  	
   

  
	
   

  	
   

  
	
  Attention: M. Giesen

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  in the presence of:

  	
  /s/ M. Giesen

  
	
   

  	
   

  
	
  Witness: M. Giesen

  	
   

  
	
   

  	
   

  
	
  Address: 135 Bishopsgate, London,
  EC2M 3UR

  	
   

  
				



 


94

















 


	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  UNICREDIT BANK AUSTRIA AG

  	
   

  
	
   

  	
   

  	
   

  
	
  Acting by its duly authorised attorney:

  	
   

  
	
   

  	
   

  
	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
				



 


	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  UNICREDIT BANK CZECH REPUBLIC,
  A.S.

  	
   

  
			



 


	
  Authorised signatory:

  	
  /s/ Álena Gáliková

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised signatory:

  	
  

  	
   

  	
   

  
					



 


	
  Address:

  	
    

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
    +420 221 119 115

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
    

  	
   

  



 


95

















 


	
  The OeKB Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  BAWAG P.S.K. BANK FÜR ARBEIT
  UND WIRTSCHAFT UND ÖSTERREICHISCHE POSTPARKASSE AG

  	
   

  
	
   

  	
   

  
	
  Acting by its duly authorised
  attorney:

  	
   

  
	
   

  	
   

  
	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  CALYON CREDIT AGRICOLE CIB

  	
   

  
				



 


	
  Authorised signatory:

  	
  /s/ L. Gubler

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised signatory:

  	
  /s/ P. Doumer

  	
   

  	
   

  
					



 


	
  Address:

  	
  9 quai du Président Paul Doumer,
  92920, Paris la Défense Cedex, France

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  0033(1)57872288

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  L. Gubler

  	
   

  



 


96

















 


	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  ERSTE BANK DER
  OESTERREICHISCHEN SPARKASSEN AG

  
	
   

  	
   

  
	
  Acting by its duly authorised
  attorney:

  	
   

  
	
   

  	
   

  
	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  
	
  Fax:

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
				



 


97

















 


	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  INVESTKREDIT BANK AG

  	
   

  
	
   

  	
   

  
	
  Acting by its duly authorised
  attorney:

  	
   

  
	
   

  	
   

  
	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  KBC BANK DEUTSCHLAND AG

  	
   

  
	
   

  	
   

  	
   

  
	
  acting by its duly authorised
  signatories

  	
   

  
	
   

  	
   

  	
   

  
	
  S. Van Dooren

  	
  /s/ S. Van Dooren

  
	
  Name:

  	
   

  	
   

  
	
  Title: Account Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  M. Leterme

  	
  /s/ M. Leterme

  
	
  Name:

  	
   

  	
   

  
	
  Title: Manager Corporate Center
  Brussels

  	
   

  
	
  Address:

  	
  Havenlaan 16, B-1080, Brussels

  	 

	
   

  	
   

  
	
  Fax:

  	
  +32 2 421 52 01

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  
				



 


98

















 


	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  RAIFFEISENLANDESBANK
  OBERÖSTERREICH AKTIENGESELLSCHAFT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised signatory

  	
  /s/ C. Unger

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Authorised signatory

  	
  /s/ C. Vejvar

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Dr. –Emil-Brichta-Strasse 9,
  D-94036 Passau

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +49 851 92 992 269

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Anja Boehm

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  RAIFFEISEN ZENTRALBANK
  ÖSTERREICH AG

  	
   

  
	
   

  	
   

  	
   

  
	
  Acting by its duly authorised
  attorney:

  	
   

  
	
   

  	
   

  	
   

  
	
  G. Langton

  	
  /s/ G. Langton

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  In the presence of:

  	
  /s/ E. Chachko

  
	
   

  	
   

  	
   

  
	
  Witness name: E. Chachko

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Moor House, 120 London Wall,
  London, EC2Y 5ET

  	
   

  
						



 


99

















 


	
  EXECUTED AS A DEED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  STANDARD CHARTERED BANK

  	
   

  
	
   

  	
   

  	
   

  
	
  acting by its duly authorised
  signatories

  	
   

  
	
   

  	
   

  	
   

  
	
  V. Simha

  	
  /s/ V. Simha

  
	
  Name:

  	
   

  	
   

  
	
  Title: Director Syndications

  	
   

  
	
   

  	
   

  	
   

  
	
  G. Ensari

  	
   

  	
  /s/ G. Ensari

  
	
  Name:

  	
   

  	
   

  
	
  Title: Associate Director
  Syndications

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  1, Basinghall Avenue, London, EC2V
  5DD

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44 20 7885 1880

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  C. Bosire

  	
   

  
				



 


100














 


	
  EXECUTED
  AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  ABN AMRO BANK N.V., BELGIAN BRANCH

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  acting
  through its duly authorised attorney:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  M. Giesen

  	
   

  	
  /s/ M. Giesen

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  135
  Bishopsgate, London, EC2M 3UR

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44
  20 7085 5920

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  M. Giesen

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  In
  the presence of:

  	
   

  	
  /s/
  D. Hague

  
	
   

  	
   

  	
   

  
	
  Witness
  name: D. Hague

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  135
  Bishopsgate, London, EC2M 3UR

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED
  AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  UNICREDIT BANK AUSTRIA AG

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Acting
  by its duly authorised attorney:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  G.
  Langton

  	
   

  	
  /s/
  G. Langton

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Moor
  House, 120 London Wall, London, EC2Y 5ET

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  In
  the presence of:

  	
   

  	
  /s/
  E. Chachko

  
	
   

  	
   

  	
   

  
	
  Witness
  name: E. Chachko

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Moor
  House, 120 London Wall, London, EC2Y 5ET

  	
   

  
					



 


101

















 


	
  EXECUTED
  AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  VORARLBERGER LANDES- UND HYPOTHEKENBANK
  AKTIENGESELLSCHAFT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised
  signatory

  	
  /s/
  T. Reich

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised
  signatory S. Germann

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Bankgasse
  1 / Postfach, CH-9004, St. Gallen

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax:

  	
  071
  / 228 8519

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
						



 


102

















 


	
  The Bond Security Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  CAPITA TRUST COMPANY LIMITED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ S. P Martin

  	
  director

  
	
   

  	
   

  
	
  Address:

  	
  Phoenix House, 18 King William
  Street, London EC4N 7HE

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44 (0)20 7800 4180

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
  Corporate
  Trusts Manager

  	
   

  	
   

  
					



 


103

















 


	
  The Hedge Counterparties

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED
  AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  ABN AMRO BANK N.V., LONDON BRANCH

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  acting
  through its duly authorised signatories:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  D.
  Hague

  	
   

  	
  /s/
  D. Hague

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A. Schoen

  	
   

  	
  /s/ A. Schoen

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  135
  Bishopsgate, London, EC2M 3UR

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fax:

  	
  +44
  20 7085 5920

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  M. Giesen

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED
  AS A DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
  acting
  by its duly authorised attorney:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  F.
  Gomboc

  	
   

  	
  /s/
  F. Gomboc

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  in
  the presence of:

  	
   

  	
  /s/
  V. Tan

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
  V.
  Tan

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
  C/O
  Latham & Watkins, 99 Bishopsgate, London, EC2M 3XF

  
					



 


104

















 


	
  The Intra-Group Lenders

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  J.H. Pässler on behalf of

  	
   

  	
   

  
	
  SAPPI AUSTRIA PRODUKTIONS-GMBH & CO. KG

  	
   

  	
  /s/ J.H. Pässler

  
	
  and thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address: Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax: +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention: J.H. Pässler

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.J.
  Wiersum  & J.H. Pässler on behalf of

  	
   

  	
   

  
	
  SAPPI PAPIER HOLDING GMBH

  	
   

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
  /s/
  J.H. Pässler

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.J.
  Wiersumon behalf of

  	
   

  	
   

  
	
  SAPPI EUROPE SA

  	
   

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  



 


105

















 


	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  J.H.
  Pässler on behalf of

  	
   

  	
   

  
	
  SAPPI INTERNATIONAL S.A.

  	
   

  	
  /s/
  J.H. Pässler

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  	
   

  
	
  SAPPI LANAKEN PRESS PAPER NV

  	
   

  	
  /s/
  B.J. Wiersum 

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  	
   

  
	
  SAPPI FINLAND OY

  	
   

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  
					



 


106

















 


 


	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.
  Jäggi on behalf of

  	
   

  	
   

  
	
  SAPPI STOCKSTADT GMBH

  	
   

  	
  /s/
  B. Jäggi

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  D-638M Stockstadt,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Obernburger Str. 1-9

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +49 (0) 6027 420823

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  B. Jäggi

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE COMMON SEAL of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SAPPI PULP ASIA LIMITED was hereunto

  	
   

  	
   

  
	
  affixed
  and thereby executed by it as a DEED

  	
   

  	
   

  
	
  in
  the presence of: En-Min Chua

  	
   

  	
  /seal affixed/

  
	
   

  	
   

  	
   

  
	
  Authorised
  Signatory:

  	
   

  	
  /s/
  H. Kirsten

  
	
  Name:

  	
  H.
  Kirsten

  	
   

  	
   

  
	
  Title:

  	
  Authorised
  Signatory

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  



 


107

















 


	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  E.
  de Vries on behalf of

  	
   

  	
   

  
	
  SAPPI MAASTRICHT BV

  	
   

  	
  /s/ E. de Vries

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Biesenweg 16,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  6211 AA Maastricht

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  + 31-43-3822731

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J. Pauly

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.J.
  Wiersum on behalf of

  	
   

  	
   

  
	
  SAPPI NETHERLANDS BV

  	
   

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED
  by

  	
   

  	
  Signature(s)

  
	
  B.J. Wiersum & M.
  Quaedvlieg on behalf of

  	
   

  	
   

  
	
  SAPPI DEUTSCHLAND HOLDING GMBH

  	
   

  	
  /s/ B.J. Wiersum

  
	
  and thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ M. Quaedvlieg

  
	
  Address: Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax: +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention: J.H. Pässler

  	
   

  	
   

  



 


108

















 


	
  THE COMMON SEAL of

  	
   

  	
   

  
	
  SAPPI TRADING HONG KONG LIMITED was
  hereunto

  	
   

  	
   

  
	
  affixed
  and thereby executed by it as a DEED

  	
   

  	
   

  
	
  in
  the presence of: En-Min Chua

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised
  Signatory:

  	
  /s/
  H. Kirsten

  	
   

  	
  /seal affixed/

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  H.
  Kirsten

  	
   

  	
   

  
	
  Title:

  	
  Authorised
  Signatory

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
					



 


109

















 


	
  SIGNED by

  	
   

  	
  Signature(s)

  
	
  B.J.
  Wiersum  & M. Quaedvlieg on behalf of

  	
   

  	
   

  
	
  SAPPI UK HOLDINGS BV

  	
   

  	
  /s/
  B.J. Wiersum

  
	
  and
  thereby executed by it as a DEED

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  M. Quaedvlieg

  
	
  Address:
  Chaussee De La Hulpe 154

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  B-1770 Brussels

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Belgium

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:
  +32 2 676 9849

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:
  J.H. Pässler

  	
   

  	
   

  



 


110